UIC Law Review UIC Law Review

Volume 32 Issue 4 Article 2

Summer 1999

A Proposed Code of Ethics for Employers and Customers of A Proposed Code of Ethics for Employers and Customers of

Notaries: A Companion to the Notary Public Code of Professional Notaries: A Companion to the Notary Public Code of Professional

Responsibility, 32 J. Marshall L. Rev. 887 (1999) Responsibility, 32 J. Marshall L. Rev. 887 (1999)

John C. Anderson

Michael L. Colsen

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Recommended Citation Recommended Citation John C. Anderson & Michael L. Colsen, A Proposed Code of Ethics for Employers and Customers of Notaries: A Companion to the Notary Public Code of Professional Responsibility, 32 J. Marshall L. Rev. 887 (1999)

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A PROPOSED CODE OF ETHICS FOREMPLOYERS AND CUSTOMERS OFNOTARIES: A COMPANION TO THE

NOTARY PUBLIC CODE OFPROFESSIONAL RESPONSIBILITY

JOHN C. ANDERSON* & MICHAEL L. CLOSEN**

In civilized life, law floats in a sea of ethics. Each is indispensable tocivilization. Without law, we should be at the mercy of the leastscrupulous; without ethics, law could not exist.1

INTRODUCTION

Misconduct in connection with notarizations is a pervasiveproblem with a long history, which traces back to the very firstnotary appointed in the American colonies.! While every state hasa statute creating and regulating the office of notary public,3 few

* Judicial Clerk, Illinois Appellate Court. Notary Public, State of Illinois.

J.D., The John Marshall Law School; B.S., Illinois State University.** Professor of Law, The John Marshall Law School. Notary Public, State

of Illinois. J.D., University of Illinois; B.S., M.A., Bradley University.Member, Commission to Draft NOTARY PUBLIC CODE OF PROFESSIONALRESPONSIBILITY, National Notary Association, 1997-98.

1. Earl Warren, quoted in FRED R. SHAPIRO, THE OXFORD DICTIONARY OFAMERICAN LEGAL QUOTATIONS 132 (1993).

2. The first notary in the American colonies was Thomas Fugill.Appointed in 1639 in New Haven Colony, he was soon removed from office forfalsifying documents. See Notaries Public In American History, NOTARYBULL., Apr. 1997, at 3. See also, John C. Anderson & Michael L. Closen,Document Authentication in Electronic Commerce: The Misleading NotaryPublic Analog for the Digital Signature Certification Authority, 17 J.MARSHALL J. COMPUTER & INFO. L. 833, 855-68 (1999) (detailing the problemsand faults with notaries public in the United States).

3. Michael L. Closen & G. Grant Dixon III, Notaries Public From the Timeof the Roman Empire to the United States Today, and Tomorrow, 68 N.D. L.REV. 873, 876 n.25 (1992). The state statutes dealing with notaries include:ALA. CODE § 36-20-1 to § 36-20-32 (1991 & Supp. 1997); ALASKA STAT. §44.50.010 to § 45.50.190 (Michie 1998); ARIZ. REV. STAT. ANN. § 41-311 to §41-326 (West 1999); ARK. CODE ANN. § 21-14-101 to § 21-14-205 (Michie 1996);CAL. GOV'T CODE § 8200 to § 8230 (West 1992 & Supp. 1999); COLO. REV.STAT. ANN. § 12-55-101 to § 12-55-123, § 12-55-201 to § 12-55-211 (West 1996& Supp. 1998); CONN. GEN. STAT. ANN. § 3-91 to § 3-95 (West 1988 & Supp.1999); DEL. CODE ANN. tit. 29, § 4301 to § 4328 (1997); D.C. CODE ANN. § 1-801 to § 1-817 (1999); FLA. STAT. ANN. § 117.01 to § 117.108 (West 1996 &

The John Marshall Law Review

states have taken substantial steps to resolve this problem, andthose public and private efforts that have been tried have beenalmost uniformly unsuccessful.4 The problem is compounded bythe fact that most notaries are lay citizens, untrained andunskilled in their duties as public officers.' Only a handful of

Supp. 1999); GA. CODE ANN. § 45-17-1 to § 45-17-34 (1990 & Supp. 1998);HAW. REV. STAT. ANN. § 456-1 to § 45-19 (Michie 1988 & Supp. 1998); IDAHOCODE § 51-101 to §51-123 (1994 & Supp. 1999); 5 ILL. COMP. STAT. 312/1-101to 8-104 (West 1994); IND. CODE ANN. § 33-16-1-1 to § 33-16-8-5 (Michie 1998);IOWA CODE ANN. § 59E.1 to § 9E.17 (West 1995 & Supp. 1998); KAN. STAT.ANN. § 53-101 to § 53-401 (1983 & Supp. 1998); KY. REV. STAT. ANN. § 423.010to § 423.990 (Michie 1992 & Supp. 1998); LA. REV. STAT. ANN. § 35:1 to §35:671 (West 1985 & Supp. 1999); ME. REV. STAT. ANN. tit. 5, § 81 to § 90-A(West 1989 & Supp. 1998); MD. CODE ANN., STATE GOVT § 18-101 to § 18-112(1995 & Supp. 1998); MASS. GEN. LAWS ANN. ch. 222, § 1 to § 11 (West 1993 &Supp. 1999); MICH. COMP. LAWS ANN. § 5.1041 to § 5.1072 (West 1993 & Supp.1999); MINN. STAT. ANN. § 359.01 to § 359.12 (West 1991 & Supp. 1999); MISS.CODE ANN. § 25-33-1 to § 25-33-23 (1999); MO. REV. STAT. § 486.200 to §486.405 (1987 & Supp. 1999); MONT. CODE ANN. § 1-5-401 to § 1-5-611 (1997);NEB. REV. STAT. § 64-101 to § 64-215 (1996); NEV. REV. STAT. ANN. § 240.010to § 240-169 (Michie 1996 & Supp. 1997); N.H. REV. STAT. ANN. § 455:1 to §455:11 (1992 & Supp. 1995); N.J. STAT. ANN. § 52:7-10 to § 52:7-21 (West 1986& Supp. 1999); N.M. STAT. ANN. § 14-12-1 to § 14-12-20 (Michie 1995); N.Y.EXEC. LAW § 130 to § 138 (McKinney 1993 & Supp. 1996); N.C. GEN. STAT. §10A-1 to § 1OA-16 (1991 & Supp. 1998); N.D. CENT. CODE § 44-06-01 to § 44-06-14 (1993 & Supp. 1997); OHIO REV. CODE ANN. § 147.01 to § 147.14 (Banks-Baldwin 1994 & Supp. 1999); OKLA. STAT. ANN. tit. 49, § 1 to § 121 (West 1988& Supp. 1999); OR. REV. STAT. § 194.005 to § 194.990 (1991 & Supp. 1998); 57PA. CONS. STAT. ANN. § 147 to § 169 (West 1996 & Supp. 1999); R.I. GEN.LAWS § 42-30-3 to § 42-30-15 (1993 & Supp. 1998); S.C. CODE ANN. § 26-1-10to § 26-1-120 (Law Co-op. 1991 & Supp. 1998); S.D. CODIFIED LAWS § 18-1-1 to§ 18-1-17 (Michie 1995 & Supp. 1998); TENN. CODE ANN. § 8-16-101 to § 8-16-309 (1993 & Supp. 1998); TEX. GOV'r CODE ANN. § 406.001 to § 406.025 (West1998); UTAH CODE ANN. § 46-1-1 to § 46-1-22 (1998); VT. STAT. ANN. tit. 24, §441 to § 446 (1992); VA. CODE ANN. § 47.1-1 to § 47.1-30 (Michie 1998); WASH.REV. CODE ANN. § 42.44.010 to § 42.44.903 (West 1991 & Supp. 1999); W. VA.CODE § 29C-9-101 to § 29C-9-101 (1998); WIS. STAT. ANN. § 137.01 to § 137.06(West 1989 & Supp. 1998); WYO. STAT. ANN. § 32-1-101 to § 32-1-113 (Michie1999).

4. Part of the problem is thatstate laws and official guidelines are seldom specific or comprehensiveenough to fully describe every facet of performing a notarial act. To fillthose 'gray gaps,' Notaries in practice must rely on a firm understandingof their basic role in society and on personal qualities of honesty,fairness and common sense.

'Am I Being Ethical?', NAT'L NOTARY, Nov. 1996, at 7. Many notaries do notpossess these qualities, however. As a result, many notaries are neitherdiligent nor competent. Michael L. Closen & R. Jason Richards, NotariesPublic - Lost in Cyberspace, or Key Business Professionals of The Future?, 15 J.MARSHALL J. OF COMPUTER & INFO. L. 703, 707 (1997) (stating that '[t]henotary's business worth (or lack thereof) is largely due to two fundamental andinterrelated factors: inadequate knowledge of their responsibilities and,consequently, poor job performance.")

5. See Michael L. Closen, The Public Official Role of the Notary, 31 J.MARSHALL L. REV. 651, 661-62 (1998) (stating '[n]otaries are said to be mere

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states currently require notary education or testing.6 Also, sincebecause notaries earn at most a paltry fee for their services, theygenerally have little or no financial incentive to learn and performtheir duties.7 While civil,8 administrative9 or criminal ° liabilityshould be ample incentive for notaries to identify and honor suchduties, notaries are generally unaware that such liabilities evenexist, or are indifferent about those risks."

About twenty years ago, the American Society of Notaries(ASN) developed a short, one-page, ten-point Code of Ethics fornotaries." That Code of Ethics addresses only the conduct ofnotaries, making no reference to any responsibilities of those whoemploy notaries nor of those who use their services.

ministerial officials. With more than four million of them, they are by far themost numerous of all public officers. Unlike most other public officials,notaries do not serve full-time in their official capacity. It is a sideline to theirprincipal positions.") (citations omitted). See also PETER J. VAN ALSTYNE,NOTARY LAW, PROCEDURES & ETHICS: A COMPLETE REFERENCE ON NOTARIALLAWS AND PROCEDURES IN AMERICA 19 (1998) (recognizing that a notary doesnot generally have the ability to judge whether a person's signature is willful).

6. See Vincent Gnoffo, Comment, Notary Law and Practice for the 21stCentury: Suggested Modifications for the Model Notary Act, 30 J. MARSHALL L.REV. 1063, 1089 n.218 (1997). The states requiring education or testing fornotaries are California, Connecticut, Louisiana, New York, North Carolinaand Pennsylvania. Id.

7. See Anderson & Closen, supra note 2, at 861. See also ALFRED E.PIOMBINO, NOTARY PUBLIC HANDBOOK: PRINCIPLES, PRACTICES AND CASESxxii (Nat'l ed. 1996) (noting "the advanced stage of decay and neglect that theoffice of notary public has suffered").

8. See First Bank of Childersburg v. Florey, 676 So. 2d 324 (Ala. Civ. App.1996) (holding that a notary may be liable for loss resulting from fraudulentconduct); Independence Leasing Corp. v. Aquino, 506 N.Y.S.2d 1003 (N.Y.1986) (holding that a notary is liable for both intentional and negligentmisconduct).

9. See, e.g., 5 ILL. COMP. STAT. 312/7-108 (West 1994) (giving Secretary ofState power to revoke a notary's commission for misconduct). See also Peoplev. Rathbone, 145 N.Y. 434 (N.Y. 1895) (revoking notary's office for violatingstate law).

10. See Johnson v. State, 238 N.E.2d 651 (Ind. 1968) (affirming notary'sconviction for falsely attesting an affidavit); Jefferson Bank v. ProgressiveCas. Ins. Co., 965 F.2d 1274 (3d Cir. 1992) (discussing the criminality ofmortgage acknowledged by an imposter posing as a notary). See also SusanRuiz Patton, Notary Public Charged With Improper Practices, ALLENTOWNMORNING CALL, June 16, 1995, at B2 (reporting that a local notary public was'charged with eight counts of improper license and paperwork practices").

11. See Michael L. Closen & R. Jason Richards, Cyberbusiness NeedsSupernotaries, NAT'L L.J., Aug. 25, 1997, at A19.

12. The Code of Ethics of the American Society of Notaries mandates thatnotaries "discharge [their] duties with both competence and integrity, resolveto adhere to... standards of conduct." CODE OF ETHICS OF THE AMERICANSOCIETY OF NOTARIES (May 4, 1980). The full content of the Code of Ethics ofthe American Society of Notaries, which includes a description of what thesestandards of conduct are, is reprinted with permission from the AmericanSociety of Notaries (ASN) in this issue of The John Marshall Law Review.

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Unfortunately, the Code of Ethics of the American Society ofNotaries (ASN Code of Ethics) has not been amended norexpanded over the last two decades. 3 Clearly, a token one-pagecode is simply too general and insufficient to adequately informand guide notaries public, especially as we approach the twenty-first century.

In an attempt to more earnestly confront and overcome theethical challenges facing notaries today, the National NotaryAssociation (NNA) recently completed its substantial NotaryPublic Code of Professional Responsibility (Notary Public Code). 14

The Notary Public Code is based upon ten "Guiding Principles,"with eighty-five accompanying "Standards of ProfessionalResponsibility." 5 For some forty years, the NNA has served the

13. Two versions of the ASN Code of Ethics have appeared, both of whichhave been substantially similar and both of which have borne the same date.Closen, supra note 5, at 667 n.88.

14. THE NOTARY PUBLIC CODE OF PROFESSIONAL RESPONSIBILITY (1998)[hereinafter NOTARY PUBLIC CODE]. The Notary Public Code is reprinted withpermission from the National Notary Association (NNA) in this issue of TheJohn Marshall Law Review.

15. Id. The Guiding Principles are:I.

The Notary shall, as a government officer and public servant, serve allof the public in an honest, fair and unbiased manner.

II.The Notary shall act as an impartial witness and not profit or gain fromany document or transaction requiring a notarial act, apart from the feeallowed by statute.

III.

The Notary shall require the presence of each signer and oath-taker inorder to carefully screen each for identity and willingness, and toobserve that each appears aware of the significance of the transactionrequiring a notarial act.

TV.The Notary shall not execute a false or incomplete certificate, nor beinvolved with any document or transaction that is false, deceptive orfraudulent.

V.The Notary shall give precedence to the rules of law over the dictates orexpectations of any person or entity.

VI.The Notary shall act as a ministerial officer and not provideunauthorized advice or services.

VII.The Notary shall affix a seal on every notarized document and not allowthis universally recognized symbol of office to be used by another or inan endorsement or promotion.

VIII.The Notary shall record every notarial act in a bound journal or othersecure recording device and safeguard it as an important public record.

IX.The Notary shall respect the privacy of each signer and not divulge oruse personal or proprietary information disclosed during execution of a

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nation's notaries as the country's largest and most activeeducational and advocacy organization. 6 The set of idealsembodied in the Notary Public Code is the indirect product of"decades of interaction between the NNA and thousands ofnotaries," other governmental officials and business persons, andit is the direct work-product of a blue ribbon commission appointedto draft it. 7 The Notary Public Code proposes answers to various"issues and questions encountered by [n]otaries, particularlymatters of conflicting interest."8 The Notary Public Code's statedpurpose is to "guide [n]otaries ... when statutes, regulations andofficial directives fall short."9 The complete Notary Public Code isa sizable document about thirty pages in length; it containsillustrations and explanations of ethical choices as well asextensive legal commentaries and citations to statutoryauthority. ° Although not everyone may agree with every featureof the Notary Public Code,2' it represents a truly monumental

,advancement of the office of notary public. Unfortunately, whilethe Notary Public Code is a much-needed source of instruction fornotaries, it too falls somewhat short of its full potential, for it failsto address directly the ethical responsibilities of those who employnotaries and those who utilize the services of notaries.

It seems that just about every profession has by now adopteda code of ethical conduct. Indeed, it may be that a group oroccupation cannot truly achieve "professional" status withoutdeveloping and adhering to an ethical code.2 Hence, there are

notarial act for other than an official purpose.X.

The Notary shall seek instruction on notarization, and keep current onthe laws, practices and requirements of the notarial office.

Id. at 1.16. See generally Milton G. Valera, The National Notary Association: A

Historical Profile, 31 J. MARSHALL L. REv. 971 (1998).17. NOTARY PUBLIC CODE, Introduction at v (1998).18. Id. at v-vi.19. Id. at v.20. See generally id.21. For instance, the Authors believe that the NOTARY PUBLIC CODE goes

too far in describing the unauthorized practice of law when it includes havingthe notary select the form of notarial certificate to be employed. See NOTARYPUBLIC CODE, Guiding Principle VI, Art. A, § VI-A-1 (1998). Further, notariesshould not be attempting to determine the "willingness" of document signers.See id. at Guiding Principle III, Art. B, § III-B-2 (1998). See also lint L.Bruno, Comment, To Notarize, or Not to Notarize... Is Not a Question ofJudging Competence or Willingness of Document Signers, 31 J. MARSHALL L.REV. 1013 (1998).

22. See CODES OF PROFESSIONAL RESPONSIBILITY v (Rena A. Gorlin ed., 2ded. 1990).

The professions have long carried distinct moral obligations with respectto public and private decisionmaking and behavior. What we do asprofessionals and how we do it, whether in commercial or nonprofitcontexts, our sense of integrity, and our regard for self and others, affect

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codes of ethics for lawyers, judges, arbitrators, architects, bankers,engineers, accountants, journalists, realtors, doctors, dentists,nurses and many others." Even a code of ethics for certificationauthorities who authenticate electronic documents and digitalsignatures has recently been proposed and drafted. 4

Traditionally, the codes of ethics for each profession have targetedthe conduct only of the professional in question.25 These codeshave not tended to impose (either directly or expressly) ethicalstandards on other parties who interact with the individualprofessions that are the subjects of the codes; yet, quite regularlyimplicit in a statement of professional ethical conduct is aconspicuous standard of behavior for others who deal with thatprofessional.26 If arbitrators, as an obvious example, may notaccept gratuities from lawyers and litigants, then most certainlylawyers and litigants should not tender such gratuities toarbitrators in efforts to tempt arbitrators away from the noblepath of impartial performance of their duties. 27

But why should such important responsibilities be leftunstated and/or unpublished? Even non-professionals must bebound to abide by appropriate ethical standards. No one should lieor cheat, although those ethical principles are so well-accepted andso well-known that they do not need to be set out in a code ofethics for the general public. Yet, other ethical responsibilitiesthat are quite generally accepted attend specialized settings anddealings and involve choices based upon more subtle and

the lives of everyone. There is no individual or group who is nottouched--directly or indirectly, for better or worse-by how we deal withincreasingly difficult and varied ethical matters. To address thesematters is our task, our charge, and the highest order of professionalresponsibility to those around us .... We find small comfort in realizingthat these complexities are frequently a microcosm of situations that allof society must deal with.

Id. See also Consuelo Israelson, The Evolution of Professional EthicsThrough the Centuries, NAT'L NOTARY, Nov. 1998, at 22 (noting that "[anethical code is a profession's promise to the world that its practitioners aretrained and trustworthy.")

23. See generally CODES OF PROFESSIONAL RESPONSIBILITY, supra note 22(setting out 43 codes of ethics for various business, health care and legalprofessionals).

24. See Dina Athanasopoulos-Arvanitakis & Marilynn J. Dye, A ProposedCode of Professional Responsibility for Certification Authorities, 17 J.MARSHALL J. COMPUTER & INFO. L. 1003 (1999).

25. See, e.g., CODES OF PROFESSIONAL RESPONSIBILITY, supra note 22.26. Id.27. Id. at 304 (quoting the American Arbitration Ass'n, CODE OF ETHICS

FOR ARBITRATORS IN COMMERCIAL DISPUTES Canon I(D) (1977): "[a]fteraccepting appointment and while serving as an arbitrator, a person shouldavoid entering into any financial, business, professional, family or socialrelationship, or acquiring any financial or personal interest, which is likely toaffect impartiality or which might reasonably create the appearance ofpartiality or bias .... ")

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particularized facts. Those ethical responsibilities need theexposure and emphasis of being formulated in writing, of beingwidely distributed and of being discussed and consistently honoredin practice.

Interestingly, at least one attempt has been made to prescribea code of conduct for all of the constituents to one professionalcontext, namely in the law review publishing process. Thus, theNational Conference of Law Reviews Model Code of Ethics (LawReview Code) recognizes the interplay of the law review staffs(including student members, faculty advisers and clericalpersonnel) and of law review authors (the lawyers, judges,professors and others who author lead articles and who are nototherwise associated with the law reviews with which theypublish).' The Law Review Code purports to set ethical standardsfor all of those participants in the publishing process, specificallywith separate guidelines for the conduct of law review staffs and oflaw review authors.29 That approach should serve as the analogfor other codes of ethics.

A code of professional responsibility simply does not exist in avacuum, as Chief Justice Warren's remarks that introduced thisArticle clearly emphasize." The professional governed by such acode will sometimes independently initiate unethical behavior, butprobably just as often, the professional will be challenged byethical questions because some other constituent to thecommercial activity tempts the professional away from the path ofhonorable conduct. Moreover, it would often be almost impossibleto succeed in a plan of misconduct unless the other constituent orconstituents to the practice cooperate in covering up the unethicalactivity. Even if the professional independently desired to engagein unethical conduct, it would be difficult to keep the misconducthidden without the help of others (who should otherwise becomethe whistleblowers disclosing the wrongdoing).'

This Article will propose a companion code to accompany theNotary Public Code. This proposed Code of Ethics for Employers

28. See generally Michael L. Closen & Robert M. Jarvis, The NationalConference of Law Reviews Model Code of Ethics: Final Text and Comments,75 MARQ. L. REV. 509 (1992); Michael L. Closen, A Proposed Code ofProfessional Responsibility for Law Reviews, 63 NOTRE DAME L. REV. 55(1988).

29. See Closen & Jarvis, supra note 28, at 509.30. See Warren, supra note 1, at 132.31. Notaries are expected to be honorable and trustworthy. Where these

two qualities are absent, the notarial system collapses. Similarly, the legalprofession demands exceedingly high standards with regard to honor andtrust. To preserve that integrity, lawyers have a duty to report the unethicalconduct of other lawyers. See, e.g., MODEL CODE OF PROFESSIONALRESPONSIBILITY DR 1-103 (1999); In re Himmel, 533 N.E.2d 790, 793-94 (Ill.1988) (explaining that an attorney has a duty to report another attorney'smisconduct).

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and Customers of Notaries could, of course, also supplement theASN Code of Ethics. This Article begins with a brief explanationof the need for this companion code, identifying how employers ofnotaries and customers of notaries so often contribute to unethicalconduct in the notarial process. This Article then sets out a ten-point code of ethical principles for notary employers and notarycustomers, along with a description of the application andmeaning of each point.

I. THE REAL REASONS FOR NOTARIAL MISCONDUCT

Growing a 'notarial backbone' is the toughest part of evolving into aprofessional and effective Notary.32

Many conflictive situations arise because professionals mightobtain significant gains from engaging in misconduct.Illustrations of these possibilities come to mind easily forprofessionals such as lawyers, bankers, realtors, accountants,doctors and others of substantial position,"3 all of which arelucrative professions. These professionals frequently areconsiderably involved in commercial transactions and many evenhave ultimate control (as a practical matter) over suchtransactions.34 These professionals of substantial stature easilyunderstand how they might improperly benefit, and therefore suchprofessionals often initiate misconduct themselves. They do notordinarily have to be pressured or coerced into a course ofdishonest activity, although there are certainly times when partieslead otherwise honest professionals astray. Greed gets the betterof such professionals.

The circumstances for the notary are usually quite different.Most notaries do not work full-time as notaries; their notarial roles

32. Know When to Say 'No', NAT'L NOTARY, Sept. 1996, at 14, 15. Underappropriate circumstances, a strong-willed and diligent notary must decline torender notarial service. "Acceptable conditions under which the notary maydecline include: presentation [of] unacceptable or inadequate identification;failure of the acknowledger or affiant to appear before the notary public,request to back-date or post-date the acknowledgment certificate or jurat, etc."PIOMBINO, supra note 7, at 64-65.

33. Such professionals often deal with clients or patients of great wealthand often deal with transactions or estates of considerable complexity andsignificant value. The more complex and valuable the subject matter, themore the inducement and the opportunity for embezzlement and other formsof fraud.

34. Even though the client or patient, as principal, should legally andactually be in ultimate control of important decision-making, in reality someagents, (the lawyers, doctors, bankers, accountants or brokers) because oftheir superior knowledge and stature, can take advantage of the trustrelationships with clients or patients and exert undue influence or perpetuatefraud. See MICHAEL L. CLOSEN, AGENCY, EMPLOYMENT, AND PARTNERSHIPLAW: CONTEMPORARY CASES AND MATERIALS 121-48 (1984) (discussing breachof fiduciary duties by agents).

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are supplemental to their main occupations.35 Most notaries do nothave substantial involvement or authority over transactions, andtheir notarial positions are not lucrative."6 In fact, notaries mostoften occupy the lowliest position at document signing ceremonies.

Notarial misconduct is usually initiated not by the notary, butby a third party." Who would gain from deceptive practices? Mostcommonly, it is the notary's employer or customer. 8 Manynotaries do not take their commissions and public official status asseriously as they should, and buy into the proposition that animproper notarization is unimportant and/or undetectable."

Some notaries public are quick to place their employer'sinterests over their official notarial duties.0 This arises as a resultof the employer's directives or threats (whether express orimplied), by the notary-employee's natural desire to serve theemployer or by the notary-employee's desire to avoid beingtroublesome to the employer.4' Other notaries are willing to forego

35. See Closen, supra note 5, at 662.36. See id. at 661 (stating that notaries are described as "mere ministerial

officials"); Guide To Notary Fees, NAT'L NOTARY, May 1999, at 22 (detailingnominal fees statutorily imposed on notaries).

37. The Notary Public Code recognizes that notarial responsibility"frequently will contradict not the provisions of law but the policies orexpectations of the [n]otary's employer." NOTARY PUBLIC CODE, Introductionat vi (1998). "Today it is a sad and ironic reality that notaries are much morelikely to be fraudulently exploited by trusted acquaintances, family membersand business associates than by perfect strangers." Charles N. Faerber, BeingThere: The Importance of Physical Presence to the Notary, 31 J. MARSHALL L.REV. 749, 749 (1998).

38. The employers and customers of notaries are the ones with directfinancial interests in the documents being signed and notarized by notaries.

39. Closen & Richards, supra note 4, at 703 (stating "the office of notarypublic continues to suffer from the stigma of insignificance.") "Between thenotary and the state government, the most damaging and costly fiduciarybreach is arguably the attempted rationalization to justify false notarialcertificates. Rationalizers assuage themselves by thinking the notarizationsdon't mean anything and that it is merely a small detail." Understanding OurFiduciary Duties as Notaries, THE NOTARY, May/June 1999, at 1, 5.

40. Often, employees will have other duties occupying the bulk of theirtime, whether these be administrative, clerical, etc. Employee-notaries oftenobtain their commissions to further the general business of their employers,making their notarial commissions something of a secondary concern incomparison to their other duties. When a situation arises where employeesmust prioritize between primary and secondary tasks, the employees' concernfor their jobs prompts them to disregard their notarial duties.

41. See, e.g., Lisi v. Resmini, 603 A.2d 321 (R.I. 1992) (suspending a lawyerfrom the practice of law where the lawyer directed his employee to notarizeforged signatures of absent clients); In re Barrett, 443 A.2d 678 (N.J. 1982)(suspending an attorney from the practice of law where he forged his client'ssignature and got his secretary to notarize it); In re Smith, 636 P.2d 923 (Or.1981) (suspending a lawyer from the practice of law where the lawyer got hissecretary to notarize the signature of an absent client). See also infra note 47for further discussion.

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the formal requirements of a proper notarization as a favor to thecustomer. Often, the customer is a friend or relative of the notary,and the notary is more inclined to notarize a document in violationof sound notarial practice.42 Of course, there are many instancesin which the employers and customers of notaries are unfamiliarwith proper notarial law and practice, and those parties suggestnotarial misconduct at least in part due to their ignorance of legaland ethical requirements. Thus, the observation of the NNA(quoted at the beginning of this section) is so accurate: a notarymust develop a "notarial backbone" in order to appropriatelycontend with undue pressures and requests from employers andcustomers.3

The Notary Public Code focuses its principles exclusivelyupon the notary, but it acknowledges on numerous occasions theinvolvement of notary employers and customers in corruptingnotaries. Obviously, since a notary is prohibited from notarizinghis/her own signature, every notarization will involve at least oneother party.1

4

There are several introductory passages of the Notary PublicCode noting the obvious interaction between two or threeconstituents to many notarizations between the notary andcustomer, between the notary and the employer, and sometimesbetween all three. 5 Furthermore, several of the officialillustrations to the Notary Public Code realistically andconvincingly make the case for the need to issue directives fornotary employers and customers as well."8

A. Notarial Misconduct Encouraged or Directed By Employers

Sometimes, notarial misconduct actually occurs under thedirection or urging of the notary's employer. 7 In such cases, the

42. See Faerber, supra note 37, at 749 (observing that acquaintances andfamily are more likely to take advantage of notaries than are strangers).

43. See Know When to Say No" supra note 32, at 15.44. NOTARY PUBLIC CODE, Guiding Principle II, Art. B, § II-B-1 (1998).45. See id. at Art. A, § II-A-1 to § II-A-2 (1998) (requiring a notary to act as

an impartial witness and not improperly profit or gain from a notarization,apart from receiving an appropriate fee).

46. See id. at Art. E, § II-E-1 (1998) (prohibiting improper compensation toa notary employee); id. at Guiding Principle III, Art. C, § III-C-3 (1998)(illustrating the problem of clients improperly influencing notarial acts).

47. See, e.g., Dickey v. Royal Banks of Mo., 111 F.3d 580, 582 (8th Cir.1997) (pointing out that a bank officer directed a bank employee-notary tonotarize a customer's signature even though the customer was not personallyin the notary's presence); Transamerica Ins. Co. v. Valley Nat'l Bank, 462 P.2d814, 815 (Ariz. Ct. App. 1969) (discussing allegations that bank officials hadasked the employee-notary to notarize customer signatures without thecustomers being in the notary's presence). This is especially a problem wherethe employee becomes a notary at the request or direction of the employer, andnotarizes documents as part of his or her normal daily routine. See also supra

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notary is found in the precarious position of having to choosebetween the seemingly competing interests of the employer andthose of the public office he holds as a notary. On the one hand,notaries are public officials having responsibilities unique to theiroffice.4" On the other hand, notary-employees are frequentlyconfronted with on-the-job pressures from employers to performimproper notarizations.49 And, notaries are no different than otheremployees who desire to win their employers' favor, or at the veryleast, to avoid any appearance of being troublemakers. Whenthese two interests conflict, it is the employer who must yield.50

note 41 and accompanying text.48. Closen, supra note 5, at 661 (stating that "notaries occupy a most

peculiar place in government and business in this country.") See also Brittonv. Niccolls, 104 U.S. 757, 765 (1881) (declaring that a notary is a publicofficer); State ex rel. Gray v. Hodges, 154 S.W. 506, 507 (Ark. 1913) (statingthat a notary is a public officer); May v. Jones, 14 S.E. 552, 553 (Ga. 1891)(declaring that "the notary... is a public officer, sworn to discharge his dutiesproperly"); Pitsch v. Continental & Com. Natl Bank of Chicago, 137 N.E. 198,200 (Il. 1922) (identifying a notary as a public officer); Stork v. American Sur.Co., 33 So. 742, 743 (La. 1903) (stating that a notary is a public officer); Stateex rel. Summerfield v. Clark, 31 P. 545, 546 (Nev. 1892) (stating that "[i]t hasbeen frequently held that a notary is a public officer"); Commercial Union Ins.Co. of New York v. Burt Thomas-Aitken Constr. Co., 230 A.2d 498, 499 (N.J.1967) (stating that "a notary public is a public officer"); Harris v. Watson, 161S.E. 215, 217 (N.C. 1931) (holding that position of notary public is a publicoffice); Clapp v. Miller, 156 P. 210, 211 (Okla. 1916) (stating that notarypublic is public officer); Commonwealth v. Haines, 97 Pa. 228 (1881) (declaringsame); Werner v. Werner, 526 P.2d 370, 376 (Wash. 1974) (identifying "[t]henotary, as a public officer"). See also BLACK'S LAW DICTIONARY 1060 (6th ed.1990) (defining a notary public as "[a] public officer...."); RICHARD B.HUMPHREY, THE AMERICAN NOTARY MANUAL 7 (4th ed. 1948) (stating that"[t]he office of notary public is a public office... ."); RAYMOND C. ROTHMAN,NOTARY PUBLIC PRACTICES AND GLOSSARY 1 (Nat'l Notary Ass'n, 1978)(recognizing that the ancient Roman notarius was a public official); Closen &Dixon, supra note 3, at 873 (stating that "[a] notary public is a public officialwith unusual powers for a non-judicial officer"). But see Transamerica Ins.Co., 462 P.2d at 817 ("designat[ing] a notary public as.... at best,... quasi-public [in] nature"). Ely Walker Dry Goods Co. v. Smith, 160 P. 898, 900(Okla. 1916) (referring to the role of notaries as quasi-public).

49. See MICHAEL L. CLOSEN ET AL., NOTARY LAW & PRACTICE: CASES &MATERIALS 331 (1997). "Unfortunately, notary-employees often face on-the-job pressures from employers who coerce them into completing falsecertificates." Id. See Employer & Notary Relations, THE NOTARY, Mar./Apr.1999, at 6 (stating "[a]n informal survey of notaries in various states indicatesthat only half of their employers expect and mandate correct notarialservices.") "The employer's.., values and objectives easily [appear to] conflictwith the laws and standards for correct notarial services." Id.

50. See Employer & Notary Relations, supra note 49, at 6 (stating "[i]t is awell-established legal principle that employers do not have any jurisdiction orauthority over [an employee's] notarial commission.") See also Milton Valera,It May Be Time To Educate Your Boss, at 1 (n.d., Nat'l Notary Ass'n) (stating"[i]f [notaries] perceive [their] job to be 'on the line' every time an impropernotarial request is made by [their] boss, seldom will [they] assert [themselves]and confront [their] employer.")

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Unfortunately, because of the employer-employee relationship, thenotary's first loyalty may instinctively seem to be to the employer,and more and more notaries are acting inappropriately,unethically and even illegally on their employers' behalves.5 '

After all, notaries work full-time for their employers, but onlypart-time as notaries." Notaries depend upon their employers fortheir livelihoods, not upon the nominal fees they may collect forperformance of notarial services. 53 Notaries may have becomecommissioned solely because of the requests of their employers,who may have paid all of the fees and costs of notarialcommissioning; both the employers and the notaries mayerroneously believe the notary position belongs to, or is owned by,the employers."4

In fact, according to the Notary Law Institute (NLI), notaries"usually become notaries at the request of [their] employers tohave the luxury of having a notary available at the workplace."55

In describing the tension of the employee-notary in theemployment setting, the NLI has perceptively observed that "[t]heconflict comes from the understandable assumption employersmake that they have dominion over... notarial services."' Sinceemployers tend to possess superior knowledge and experience inthe workplace, these factors may seem to carry over to the notaryfeatures of the jobs of notary-employees as well. Anotherpossibility is that notaries and their employers are unaware of theofficial duties of the notaries and of the lines of demarcationbetween private jobs and public responsibilities." But everyoneshould be aware of the obvious conclusion: an employer whodirects an employee-notary to engage in illegal conduct also can befound guilty of illegal conduct himself.58

51. Closen & Richards, supra note 4, at 713. "Employers of notariesencourage or direct them to take shortcuts." Id. "[Glood people do bad things"in part because "[t]hey believe that the activity is in the organization's bestinterest." Michael G. Daigneault, Why Ethics?, ASS'N MGMT., Sept. 1997, at31.

52. Closen, supra note 5, at 662 (observing that the notarial position "is asideline to [notaries'] principal positions"). "Their notary functions ordinarilyaccount for a small part of the activities engaged in while at their jobs." Id. at676.

53. See Guide To Notary Fees, supra note 36, at 22 (outlining the fees thatnotaries are allowed to charge).

54. Closen, supra note 5, at 678-79. See Employer & Notary Relations,supra note 49, at 6 (pointing out that it should be "irrelevant whether the feesand supplies to become a notary were paid for by... [the notary's] employer").

55. Employer & Notary Relations, supra note 49, at 6.56. Id.57. Id. "In almost every circumstance, this improper attitude [of employers

about notarial services] results from the employer's complete lack ofawareness of the law and procedures for notarizations." Id.

58. See id. (stating "[e]mployers often do not realize that when theypressure a notary into violating state notary law, they are violating the state

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Notarial misconduct is not always motivated by fear of losingone's job. It is also influenced by ignorance of a notarization'sformal requirements. This is especially the case where the notarysought his or her commission at the direction of a supervisor.Such employees may not understand that their commissions makethem "autonomous public official[s]," requiring them to deter anddetect fraud.59 Often, these employees operate under theassumption that their commissions exist solely to facilitate theemployers' activities. Moreover, many notary employees feelcompelled "to surrender their notarial seals, [embossers,] journalsand commission certificates to [their] employer[s]" should theyleave for employment elsewhere.60 Employers do little to rectifythe misunderstanding, either through their own dishonesty orsimply because they are equally unaware of the notary employees'legal and ethical responsibilities.

There is some disagreement among courts as to when andhow a notary employer becomes liable for an employee's notarialmisconduct. Early on, courts were somewhat hesitant to holdemployers liable for the misconduct of notary employees because ofthe notary's status as a public official."' Other courts seemed tohave had no trouble finding a notary employer liable for anemployee's notarial misconduct.62 Today, several state notarystatutes establish the vicarious liability of employers for employee-notary misconduct,63 and common law vicarious liability ofemployers of notaries is predictable." However, the variousformulations of such liability differ markedly, 5 and courts are stillin disagreement as to when or how an employer should bevicariously liable for an employee's notarial misconduct.66

In 1891, the Georgia Supreme Court refused to find anemployer liable because, the court reasoned, notaries complete

notary law themselves!")59. See Deborah M. Thaw, The Feminization of the Office of Notary Public:

From Femme Covert to Notaire Covert, 31 J. MARSHALL L. REV. 703, 732(1998); Valera, supra note 50, at 1.

60. See Thaw, supra note 59, at 732.61. See May v. Jones, 14 S.E. 552, 553 (Ga. 1891) (refusing to find employer

liable for employee's notarial misconduct).62. See Simon v. Peoples Bank & Tr. Co., 180 A. 682, 684 (N.J. 1935)

(finding that it is a well-settled rule that notary employers are vicariouslyliable for an employee's notarial misconduct).

63. See, e.g., IDAHO CODE § 51-118 (1994). Some jurisdictions imposeemployer liability if the notary acts within the scope of employment inaddition to employer consent of the misconduct. See, e.g., MO. REV. STAT. §

486.360 (West 1987 & Supp. 1999); W. VA. CODE § 29C-6-102 (1998).64. See PIOMBINO, supra note 7, at 26 (noting the joint liability of notary-

employers for the official misconduct of notary-employees).65. See Closen, supra note 5, at 677-81 (discussing the various descriptions

of vicarious liability of notary-employers for notary-employee misconduct).66. See CLOSEN ET AL., supra note 49, at 331-55 (discussing various

common law vicarious liability outcomes relating to notarial misconduct).

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tasks that cannot be completed by the employer. 7 However, in1935, the New Jersey Supreme Court suggested that an employerwho encourages or directs a employee-notary to commit fraud isequally subject to liability."8 The most common theory foremployer vicarious liability for notarial misconduct probably existsunder basic agency principles.69 Other theories for employerliability include negligent hiring and negligent supervision of thenotary.7 °

Suppose Z is terminally ill and is spending the last few daysof his life in a hospital. Z contacts an attorney and instructs theattorney to draft Z's will. Z's son, X, at the request of Z, travels tothe attorney's office to pick up the document and take it to thehospital for Z's signature. However, the terms of the will, leavingvirtually all of Z's property to X, are not agreeable to Z, andtherefore Z does not sign the will. Unbeknownst to the attorney, Xreads the draft will, forges Z's name and presents the document tothe attorney. Even though Z is not present, under thecircumstances, the attorney instructs a law firm secretary tonotarize Z's apparent signature. Although the secretary knowsthis is improper, the secretary needs her job and does not want tocreate a problem; so the secretary performs the notarization. This,unfortunately, is a common scenario.1

67. May v. Jones, 14 S.E. 552, 552 (Ga. 1891).68. See, e.g., Commercial Union Ins. Co. of New York v. Burt Thomas-

Aitken Constr. Co., 230 A.2d 498, 501 (N.J. 1967) (stating "the privateemployer of a notary public might be liable for the notary's breach of duty ifthe employer participated in that breach, as for example, if the employershould ask or encourage the notary to act without appropriate inquiry.")

69. See Gerald Haberkorn & Julie Z. Wulf, The Legal Standard of Care forNotaries and Their Employers, 31 J. MARSHALL L. REV. 735, 742-47 (1998)(discussing the application of basic agency principles to notarial services andemployer liability).

70. CLOSEN ET AL., supra note 49, at 351. See also First Nat'l Bank ofManning v. German Bank, 78 N.W. 195, 196 (Iowa 1899) (stating that "[i]nmaking [collection of the draft] it is usual to employ a notary, and, inforwarding the draft, there was an implied direction to do so, if necessary. Ifthe defendant exercised prudence in making its selection, its responsibilityended.") (citations omitted); May, 14 S.E. at 553 (stating that "[i]n some cases,it seems, the bank would be liable for negligence in the selection of anotary .... ")

71. Unfortunately, estate planning documents are often at issue insituations where attorneys direct notarial misconduct. See, e.g., Killingsworthv. Schlater, 292 So. 2d 536 (La. 1973) (dealing with accusations that will notbe typed by attorney-notary); In re Boyd, 430 N.W.2d 663 (Minn. 1988)(suspending attorney who prepared false deed and caused it to be notarized);In re Morin, 878 P.2d 393 (Or. 1994) (disbarring attorney who frequentlynotarized wills outside the presence of clients). Lawyers frequently obtainnotarizations of absent clients' signatures from their s employee-notaries. See,e.g., In re Barrett, 443 A.2d 678 (N.J. 1982) (suspending an attorney from thepractice of law where he forged his client's signature and got his secretary tonotarize it); In re Smith, 636 P.2d 923 (Or. 1981) (suspending a lawyer from

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In 1993, the New Jersey Supreme Court reprimanded alawyer for instructing an employee to notarize false signatures."2

One of the most common situations for notarial misconduct in theworkplace occurs when the employer instructs the notary-employee to notarize a signature for a person not physicallypresent.73 Counselors at the NNA's Information Service telephonehotline report that "notary employees [are routinely] pressured,intimidated ... [and] threatened" into "expediting" transactions byignoring the formalities of proper notarizations.74 Unfortunately,while disciplinary systems are in place for attorneys who directsuch notarial misconduct and who are caught doing it," mostnotary employers are not licensed attorneys and are not subject tothe same degree of scrutiny.6

Notarial misconduct appears to be a growing problem in lawfirms.7 Law firms and lawyers are faced with heavy caseloads andimpending deadlines that can tempt them to act too quickly, toosloppily and to simply cut corners.8 In particular, issues arisewhere the attorney commits misconduct in his or her capacity as anotary, or where an attorney directs a notary-employee to performan improper notarization. Because legal documents so oftenrequire notarization, most law firms require staff members toobtain notary commissions and hence, many attorneys arethemselves notaries.79 When a notary-employer directs an

the practice of law where the lawyer got his secretary to notarize the signatureof an absent client); Lisi v. Resmini, 603 A.2d 321, 321 (R.I. 1992) (suspendinga lawyer from the practice of law where attorney directed his employee tonotarize forged signatures of absent clients). See also supra note 47 andaccompanying text.

72. In re Marra, 635 A.2d 504 (N.J. 1993).73. Thaw, supra note 59, at 731.74. Id. Often the absent signer is a relative, friend or client of the

employer. Id.75. See MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 1-102(A)(2)

(1999) (prohibiting a lawyer from "[c]ircumventing [d]isciplinary [r]ule[s]through actions of another").

76. See Michael L. Closen, Why Notaries Get Little Respect, NAT'L L.J., Oct.9, 1995, at A23. With more than 4.2 million notaries public in this country,most of them are not employed by attorneys or law firms. Id.

77. See generally Christopher B. Young, Signed, Sealed, Delivered...Disbarred? Notarial Misconduct by Attorneys, 31 J. MARSHALL L. REV. 1085(1998). See also Michael L. Closen & Christopher T. Shannon, The 10Commandments of Notarial Practice for Lawyers, AM. NOTARY, 3d Quarter1999, at 1 (stating that "lawyers are perhaps the worst offenders of soundnotarial practice and of notary public laws"); Michael L. Closen & Thomas W.Mulcahy, Conflicts of Interest in Document Authentication by Attorney-Notaries in Illinois, 87 ILL. B.J., June 1999, at 320 (arguing that whenattorney-notaries "notarize the documents they have prepared for their [own]clients... [it leads to the] appearance of impropriety... [and to actual]conflict[s] of interest").

78. Closen & Mulcahy, supra note 77, at 321.79. Young, supra note 77, at 1101.

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employee to make an improper notarization, and when thatemployer is an attorney or a law firm, particularly troublesomeissues arise. Attorneys are bound by strict ethical standards andare required to ensure that non-lawyer employees engage inconduct consistent with the attorney's professional obligations."Unfortunately, a significant number of cases illustrate thatattorneys have been disciplined for directing their employees tocommit notarial misconduct; almost all of attorney-related notarialviolations go unreported or undetected and undisciplined.8'

In The Florida Bar v. Farinas, attorney Farinas representedclients who completed and signed interrogatories but failed tohave their signatures notarized.82 Because his clients lived inanother state, Farinas simply contacted a notary and had thesignatures notarized in his clients' absence.83 He was charged withviolating the Rules of Professional Conduct, engaging in conductprejudicial to the administration of justice, engaging in conductunlawful or contrary to honesty and justice, and engaging inconduct involving dishonesty, fraud, deceit or misrepresentation.4

Farinas defended his actions by claiming he was unaware that

80. MODEL RULES OF PROFESSIONAL CONDUCT Rule 5.3 (1997). Withrespect to a nonlawyer employed or retained by or associated with a lawyer:

(a) a partner in a law firm shall make reasonable efforts to ensure thatthe firm has in effect measures giving reasonable assurance that theperson's conduct is compatible with the professional obligations of thelawyer;(b) a lawyer having direct supervisory authority over the nonlawyershall make reasonable efforts to ensure that the person's conduct iscompatible with the professional obligations of the lawyer; and(c) a lawyer shall be responsible for conduct of such a person that wouldbe a violation of the rules of professional conduct if engaged in by alawyer if:

(1) the lawyer orders or, with the knowledge of the specific conduct,ratifies the conduct involved; or(2) the lawyer is a partner in the law firm in which the person isemployed, or has direct supervisory authority over the person, andknows of the conduct at a time when its consequences can be avoidedor mitigated but fails to take remedial action.

Id.81. See generally Young, supra note 77, at 1093-103 (providing a survey of

cases involving attorney and notarial misconduct).82. 608 So. 2d 22, 23 (Fla. 1992).83. Id. The notarization violated Florida law, which requires:[e]very notary public in the state shall require reasonable proof of theidentity of the person whose signature is being notarized and suchperson must be in the presence of the notary public at the time thesignature is notarized. Any notary public violating the above provisionshall be guilty of a misdemeanor of the second degree .... It shall be nodefense under this section that the notary public acted without intent todefraud.

Id. at 24 (citing FLA. STAT. ANN. § 117.09(1) repealed by Laws 1991, C 91-291, § 8, eff. Jan. 1, 1992).

84. Id. at 24.

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proper notary procedure required the document signer be presentbefore the notary." The court-appointed referee in the case foundFarinas not guilty and stated that lawyers commonly found anotary "to notarize a client's signature without the client's beingpresent" as if to suggest that notarization is not a matter of anyconsequence.86 Farinas paints a disturbing picture of both the lackof knowledge regarding notarial law, even among lawyers, and thefrequency with which such laws are ignored.

It is also disturbing that so many employers fail tounderstand that strict compliance with notary laws and notaryprocedures is in the employers' best interests.87 Employers shouldfoster thorough notary practice, not undermine it. If employerspromote thorough notarial practice, such efforts should reducenotarial errors and misconduct. If employee-notaries are morecareful and thorough, employers will suffer less vicarious liabilityfor defective and fraudulent notarizations. After all, the purposeto effect behavior modification among employers (masters) andemployees (servants) was at the heart of the early legal decisionsfinding employers vicariously liable (although not guilty of anyfault) for the injuries caused by their employees.88

85. Id. at 23.86. Id.87. Understanding Our Fiduciary Duties as Notaries, supra note 39, at 3.

"The signer... come[s] to [the notary] with every justifiable expectation that[the notary] will perform the notarization competently so that the needednotarization will be viewed as valid and enforceable." Id.

88. CLOSEN, supra note 34, at 4-5. Under the deterrence theory, thethought was that holding principals/employers vicariously liable for theactions of their agents/employees would reduce misconduct. Employers wouldbe moved to use greater caution in selecting employees, employers would beinclined to more carefully instruct employees, and employers would beencouraged to more closely supervise employees--all of this having the effectof deterring misconduct by employees. Id. at 4-6.

The law of agency did not have to be to the effect that theprincipal/master is accountable for the actions of his agent/servant.Why, for example, where a servant commits a negligent tort on a thirdparty is it insufficient to hold only the servant liable? In Stockwell v.Morris, 46 Wyo. 1, 22 P.2d 189, 194 (1933), the court commented, '[T]herule that a master is liable for the negligence of his servant committedin the course of his employment... is founded not upon a rule of logic,but upon a rule of public policy.' A number of justifications have beenannounced for holding the master accountable ....A third reason for the general rule is the deterrence theory. The theoryis that if a principal/master knows he will be accountable for the actionsand transgressions of his agent/servant, he will be more careful inselecting his agent/servant in the first place and will be more diligent inhis instruction and supervision of his agent/servant during the term ofthe agency.

Id. at 4-5.

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B. Notarial Misconduct Encouraged By Customers

Employers are not alone in inducing notarial misconduct.Often, misconduct is initiated or encouraged by the notary'scustomer. 9 A wide range of settings is possible in whichcustomers seemingly find it to their advantage to encouragenotaries to violate sound notarial practices.

At one end of the spectrum might be the customer who urgesthe notary to expedite the notarial process by omitting one or moresteps in a thorough notarization simply to save time.90 Thoughsuch requests may appear rather innocent, at a minimum they canresult in notaries failing to exercise reasonable care in theperformance of their duties. Such requests perpetuate thestereotype that notarial procedures are not important and can beabbreviated merely to save a little time. At the most sinister level,the seemingly innocent request to speed up the process and skipone or more steps in it may be a rouse employed by a scoundrel toaccomplish a forgery. When customers suggest the omission ofsteps in sound notarial practice, it especially indicates that thosecustomers know the process and intend to circumvent it.

Other customers may play upon the goodness of notaries tooverlook notarial requirements for the convenience of thecustomers. Some of those customers may be the notary's friends,family or associates and may think they have standing to ask forand obtain such personal favors.91 These circumstances are not atall innocent because, again, the fact that the customers know thenotarial requirements and seek to circumvent them indicatesknowing and intentional misconduct. Some of these requests willbe made with purely fraudulent motives to accomplish forgeries.Occasionally, notaries will be offered bribes to violate notarial lawand practice or will be induced to join in collusion to defraud bythe prospect of financial gain.9" Amazingly, it is not uncommon forcustomers who are friends, family or associates of notaries toutilize such connections to obtain improper notarizations, therebyinvolving those notaries in the fraudulent schemes.9"

89. Faerber, supra note 37, at 750 (providing examples of common scenariosof notarial fraud).

90. See, e.g., Paul D. Bresnan, Investigator Relates a Shocking 'Typical'Case of Notary Fraud, NOTARY BULL., June 1997, at 5.

91. See id. (citing the case where a husband forged his wife's name to a realestate document and convinced a fellow worker, with whom he had a "solidworking relationship," to notarize the forged signature in the absence of thewife).

92. See, e.g., Logue v. Von Almen, 40 N.E.2d 73 (Ill. 1941) (observing thatnotary naughtily notarized deed in which he held a financial interest).

93. See Bresnan, supra note 90, at 5 (noting where a husband persuaded aco-worker notary to notarize his wife's forged signature, both the husband andthe notary were the subjects of civil and administrative actions).

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For example, a husband prepares a fraudulent documentoperating to remove his wife's name from a deed to property theyown together.94 The husband forges his wife's signature and thengoes to have the signature notarized. Arriving at the notary'splace of business, the husband presents the document and asksthat it be notarized. The husband explains to the notary (who is areal estate broker and with whom the husband is acquainted) thathis wife is out-of-town, or that she is ill and unable to personallyappear. The notary, reluctant to notarize the document in thewife's absence, gives in to the husband's pleas that timeconstraints require immediacy. Relying on the acquaintance-husband's word, the document is notarized. It turns out that thehusband and wife are in the midst of a hotly contested divorce.The wife, upon discovering what has happened, sues both thehusband and the notary for fraud. The notary's notarycommission is ultimately revoked and his real estate license couldbe revoked as well.95 Again, this is a common scenario."

Thus, there is considerable room for notarial mistakes andmisconduct. There is also considerable opportunity for employersand customers of notaries to initiate notarial violations or toconspire with notaries to commit fraudulent schemes.

II. A CODE OF ETHICS FOR EMPLOYERS AND CUSTOMERS OF

NOTARIES

The Code of Professional Responsibility points the way to theaspiring and provides standards by which to judge thetransgressor.

9 7

Although the Notary Public Code establishes a basicframework for notaries and their professional obligations, it is stilllacking. More often than not, notarial misconduct is encouragedor initiated by an employer or customer rather than simplyundertaken unilaterally by the notary. With this in mind, theNotary Public Code, as well as the ASN Code of Ethics, would bothbe more thorough if they also addressed the responsibilities of

94. Id.95. Id.96. This is an actual case from an article by Paul D. Bresnan, a former

Senior California State Notary Investigator who, for over 12 years,investigated more than 1500 cases of notarial fraud. Id. Over two-thirds oflawsuits involving notarial misconduct involve real estate deeds. NAT'LNOTARY ASSN, 101 USEFUL NOTARY TIPS 17 (1995). See also In re McAlear,170 P.2d 763, 766-67 (Or. 1946) (disbarring attorney because he forged hisestranged wife's signature on various deeds and checks and then persuaded anattorney-notary to notarize the signatures).

97. MODEL CODE OF PROFESSIONAL RESPONSIBILITY, Preamble (1999). TheNNA recognizes this problem in the Notary Public Code, yet fails toadequately address the issue. See NOTARY PUBLIC CODE, Introduction at v(1998).

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employers and customers. Everyone is obliged to follow the law,which includes notary public statutes. Moreover, employers andcustomers benefit directly from notarial services, and especiallyowe a duty to follow (rather than to discourage) adherence toformal notarial requirements. This is particularly true where thenotary employer is an attorney or law firm. Misconductundermines the integrity of the office of notary public.98 The well-documented risk of conflictive practices employers and customerscause notaries warrants specific treatment in a code of ethics. Thefollowing ten principles, along with the accompanying explanatorymaterials, constitute a suggested Code of Ethics for Employers andCustomers of Notaries. Just as the goals of the ABA's Code ofProfessional Responsibility (quoted above) were to provideguidance for those aspiring to the highest ethical conduct and toset clear standards to permit discipline for violators,99 these samepurposes can be achieved with this Code of Ethics for Employersand Customers of Notaries.

1. Guiding Principle I: Employers And Customers Shall RespectThe Role Of Notaries As Independent And Impartial PublicOfficials.

A notary public is an authentic public officer who is to act asan impartial witness. 100 As the New York Court of Appeals statedlong ago, notaries "are created for the benefit of the public."'And, just like every other public officer (such as a legislator,mayor, police officer, building inspector or court clerk) whenperforming the functions of the public office, he or she is requiredto do so properly, without undue or corrupt influences guiding ordirecting his or her official acts.'

Employers and customers' misbehavior regularly challengesnotaries who refuse to notarize-that is, notaries are chastised fordoing the right thing.' For example, employers and customers

98. NOTARY PUBLIC CODE, Introduction at v-vi (1998). As a member of theCommission charged with drafting the Notary Public Code, Professor Closensuggested that the Code be expanded to treat employers and customers ofnotaries, but that was not undertaken. Paradoxically, the Notary Public Coderecognizes that notarial responsibility "frequently will contradict not theprovisions of law but the policies or expectations of the [niotary's employer."NOTARY PUBLIC CODE, Introduction at vi (1998). Yet, the Notary Public Codegives scant further mention of this issue in its guiding principles. NOTARYPUBLIC CODE passim (1998).

99. MODEL CODE OF PROFESSIONAL RESPONSIBILITY, Preamble (1999).100. Closen, supra note 5, at 651-52. See also supra note 48 and

accompanying text for further discussion.101. Sylvia Lake Co. v. Northern Ore Co., 151 N.E. 158, 159 (N.Y. 1926).102. See Understanding Our Fiduciary Duties as Notaries, supra note 39, at

1 (asserting that notaries owe a fiduciary duty to perform competently andhonestly).

103. See generally The Crisis of Responsibility, NATL NOTARY, May 1995, at

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regularly tender defective documents to notaries, such asdocuments containing blank spaces within their bodies.""Although there is some authority to the contrary,'' notariescannot notarize such documents, unless and until the blanks arefilled in or marked N/A ("not applicable").0 ° Employers andcustomers will sometimes tender documents containing no notariallanguage whatsoever, but notaries cannot notarize them until thenotarial certificate language has been added.' 7

Employers and customers may falsely date notarialcertificates and expect notaries to ratify these falsifications.' 8

Notaries either must correct such erroneous dates or must refuseto notarize. 09 Unfortunately, there are situations whereemployers or customers view notarizations as no big deal, and thusnotarial formalities are seen as unnecessary inconveniences notworth following (as later sections of this Article will point out ingreater detail).

In another situation, an employer or customer may ask anotary to notarize for a signer with whom the notary cannotcommunicate due to a language barrier, and for whom the notarycannot verify identity because the signer's documents ofidentification are in a language foreign to the notary."' The

11 (discussing notary duties and responsibilities).104. NOTARY PUBLIC CODE, Guiding Principle IV, Art. D, § IV-D-1 (1998)

(illustrating the problem when "[t]he Notary is asked by a stranger to notarizethat person's signature on a document containing blank spaces").105. Since a notary's sole function is to identify document signers and to

notarize the signers' signatures (and sometimes to administer an oath to thesigners), the argument can be made that the notary should not be judging thecompetence, willingness or understanding of document signers and should notbe evaluating the completeness of documents. Of course, notaries have theresponsibility to see that the certificate of notarization is complete, but that isall. "A notarization is nothing more than a written verification that a person'ssignature is genuine." (emphasis added). Understanding Our Fiduciary Dutiesas Notaries, supra note 39, at 3. See generally Bruno, supra note 21, at 1013(arguing that notaries should not attempt to judge the competence orwillingness of document signers).

106. NAT'L NOTARY ASS'N, SORRY, NO CAN Do! 2, at 7 (1993) [hereinafterSORRY, No CAN Do!]. "The Notary shall refuse to notarize any documentwhose text is blank or incomplete." NOTARY PUBLIC CODE, Guiding PrincipleIV, Art. D, § IV-D-1 (1998).

107. NOTARY PUBLIC CODE, Guiding Principle IV, Art. A, § IV-A-1 (1998)."The Notary shall not notarize any document unless it bears jurat,acknowledgment or other notarial 'certificate' wording that specifies what theNotary is attesting." Id. This statement is followed by an illustration of acustomer who asks a notary to notarize a drawing containing no notarialcertificate. Id.

108. SORRY, NO CAN DO!, supra note 106, at 7. "If you are asking the Notaryto write a date other than today's date-the actual date of notarization-on anofficial notarial form, then you may be accused of soliciting an illegal act,which is itself a crime." Id.

109. Id.110. Id. at 8. "The Notary is approached by a client and a stranger who does

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notary cannot notarize under such conditions. The Notary PublicCode supports that conclusion by directing: "[t]he Notary shall notnotarize for any person with whom the Notary cannot directlycommunicate in the same language, regardless of the presence of athird-party interpreter or translator.""'

Another circumstance in which other parties ask notaries tobreach notarial ethics involves requests to disclose the contents ofnotary journals. (The maintenance of a thorough andcontemporaneous notary journal is a duty that will be discussed indetail in later sections of this Article.112) Notary journal entriescontain information that the parties to a notarization mayconsider to be important and/or confidential. Notaries have theresponsibility to preserve the confidences of those for whomnotarizations are performed. Therefore, notaries should notrelease confidential information from their journals upon requestsfrom employers and customers."' The Notary Public Code coversthis point as the principle applies to notaries themselves: "[t]heNotary shall respect the privacy of each signer and not divulge oruse personal or proprietary information disclosed during executionof a notarial act for other than an official purpose.""' The ASNCode of Ethics urges the notary not to "betray the confidence ofany individual appearing before" him and not to "divulge thecontents of any document nor the facts of execution of thatdocument without proper authority.""1

While an employer can and should have in-house policies inplace to foster the availability, accuracy and thoroughness ofnotarizations performed by each employee-notary, such policesmust be consistent with existing notarial law and ethics-for afterall, it is the notary who is commissioned to perform the officialfunctions, not the employer."6 Similarly, no matter how important

not speak English, but offers a foreign passport as proof of identity." NOTARYPUBLIC CODE, Guiding Principle III, Art. C, § III-C-3 (1998).111. NOTARY PUBLIC CODE, Guiding Principle III, Art. C, § III-C-3 (1998).112. See infra text accompanying notes 185-207.113. The journal entry may contain such information as addresses and

phone numbers of document signers, drivers' license/passport numbers, anddocument types and dates. See infra text accompanying note 190.

Document signers should be entitled to expect that public officialsperforming notarizations will not reveal anything about the signers orthe documents, unless permitted to do so by the entrustors or lawfullycompelled to do so. Notaries should not even divulge the fact of aparticular notarization. Included within this confidentialityresponsibility is the duty to protect the security of the notary journal,which contains information about each notarization.

Closen, supra note 5, at 668-69.114. NOTARY PUBLIC CODE, Guiding Principle IX (1998).115. CODE OF ETHICS OF THE AMERICAN SOCIETY OF NOTARIES (May 4,

1980).116. See generally, Closen & Shannon, supra note 77, at 1 (suggesting among

other things that law firms (as employers) should have various practices and

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a particular customer may be to the notary or the notary'semployer, customers cannot dictate how a notarization will beperformed. Impartiality and independence are the hallmarkqualities of a notary public. If one does not have the gumption toinsist on adhering to established notarial law and sound notarialpractice, then one should not be a notary public. However,employees do not generally wish to appear disloyal to theiremployers and customers, and employers and customers shouldnot place notary employees in a position of having to choosebetween their notarial commissions and their jobs or business.

2. Guiding Principle II: Employers and Customers ShallCooperate With and Honor Notaries' Insistence Upon the PhysicalPresence of Document Signers at the Time of Notarization.

The most important function of the notary is to properlyidentify document signers, so as to prevent and deter documentfraud."' The notary statutes of every state expressly or impliedlydemand that document signers appear in the physical presence ofnotaries to sign or acknowledge their signatures;"8 the ModelNotary Act demands likewise."' Without adhering to thisrequirement of traditional notarizations (in contrast to thecontemporary verification of digital signatures and electronicdocuments)," ' it would be nearly impossible to assure the signers'identities.

According to the Notary Public Code, "[t]he Notary shallrequire the presence of each signer and oath-taker in order to

policies in place for notarial services).117. See The ID Puzzle, NAT'L NOTARY, Sept. 1996, at 9 (stating "[t]he

Notary of the 1990s is heavily relied upon to verify that the signers of certainimportant documents are who they claim to be.") "At this time when businesstransactions between strangers are commonplace, society depends on theNotary to invest integrity and reliability into the document-execution process."Id. at 10. "A notarization is nothing more than a written verification that aperson's signature is genuine." Understanding Our Fiduciary Duties asNotaries, supra note 39, at 3. "Perhaps the notary's most important dutywhen notarizing a signature is to exercise reasonable care to ascertain theidentity of the signer." VAN ALSTYNE, supra note 5, at 23.

118. See, e.g., MICH. COMP. LAWS ANN. § 565.264 (West 1993); N.J. STAT.ANN. § 46:14-2.1(b) (West 1986 & Supp. 1999). "Under centuries of practiceand under fundamental common law rules the performance of this duty [toverify document signer identity] absolutely requires the signer to personallyappear in the physical presence of the notary prior to the execution of thenotarization." VAN ALSTYNE, supra note 5, at 23.

119. MODEL NOTARY ACT § 1-105 (1) to § 1-105 (4) (1984).120. See generally Anderson & Closen, supra note 2, at 833 (discussing

document authentication through digital signatures); Closen & Richards,supra note 4, at 703 (discussing the role of cybernotaries and the inadequacyof cybernotary legislation).

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carefully screen each for identity....""' Yet, employers regularlyask, encourage or direct their staff-notaries to performnotarizations of signatures for absent signers, often family,friends, associates or clients of the employers.2 2 Employers regardthis practice as appropriate support or favoritism for others, eventhough it violates the most fundamental precept of lawful andsound notarial practice. Customers, as well, regularly ask for thisaccommodation of not having the signer personally present to signor acknowledge the signature."3 For example, a customer well-known to a notary might execute and mail a document to thenotary and then call the notary on the telephone to request thatthe notary notarize the document when it arrives without thesigner being personally present. 24 Even though the notary wouldrecognize the customer's voice and signature, the notary may notlegally nor ethically notarize under those circumstances."'

Furthermore, many document signings must include oraloaths taken by the signers to the truth of the contents of thedocuments, 1 and notaries should administer such oaths directlyin person to the signers. An oath cannot be administered if theone required to take it is not even present. Yet, employers andcustomers will sometimes ask notaries to administer oaths over

121. NOTARY PUBLIC CODE, Guiding Principle III (1998).122. "[Elven if an employer argues that it is an unnecessary inconvenience

for a major client to appear before a Notary-employee for the signing of anotarized contract, the Notary must still insist on that client's personalappearance .... " Am I Being Ethical?', supra note 4, at 7-8.123. See, e.g., Butler v. Comic, 918 S.W.2d 697, 698 (Ark. 1996) (stating that

two of ten brothers and sisters presented a quitclaim deed purportedly signedby all ten to a notary for notarization even though eight were not present, andthat some of the signatures were forgeries); McWilliams v. Clem, 743 P.2d 577,579 (Mont. 1987) (stating that the husband, who signed a deed, persuaded thenotary to also notarize the purported signature of the wife to the same deedalthough the wife was not present, and that the wife's signature was aforgery); Ameriseal of N.E. Florida, Inc. v. Leiffer, 673 So. 2d 68, 69 (Fla. Dist.Ct. App. 1996) (stating that a notary notarized the actual signatures of twodocument signers although they were not present and that the documentcontained false information).

124. See NOTARY PUBLIC CODE , Guiding Principle III, Art. A, § III-A-1(1998).

125. Id. "The Notary declines to perform a 'telephone notarization' withoutthe physical presence of the signer, since it would be a clear violation of thelaw .... " Id.

126. Closen, supra note 5, at 660-61. "Notaries may or may not be asked toadminister oaths to document signers, depending upon the kind ofnotarizations sought." Id. A jurat requires the administration of an oath. SeeTip Sheet, NAT'L NOTARY, July 1999, at 20 (discussing the proper procedurefor the administration of oaths).

127. See NOTARY PUBLIC CODE, Guiding Principle III (1998). It would oftenbe impossible to know for sure the identity of a party at the other end of atelephone line or cellular call, so the notary's key function of identifying thedocument signer and oath-taker could not be performed. Id. at GuidingPrinciple III, Art. A, § III-A-1 (1998).

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the telephone to absent signers,"8 or perhaps to omit theadministration of the oral oath entirely. Unquestionably, theintegrity of a document and the diligence of a notary will be placedin question if an oath that should have been given in person isadministered by telephone129 or not administered at all.'

Employers and customers must not attempt to persuadenotaries to violate the fundamental physical presence requirementfor document signers. Statutory and case law require suchphysical presence."3 ' The Notary Public Code recites the obviousproposition that "[t]he Notary shall give precedence to the rules oflaw over the dictates or expectations of any person or entity.""'Requiring signers to be physically present is in the best interestsof employers and customers because it prevents document fraudand assures the integrity of notarizations. 3' On the other hand, ifa notarization were performed without the physical presence of thesigner, and if that fact were later to come to light, the notarization,the document on which it appears and the underlying transactioncould be subject to challenge and possible invalidation."Employers and customers should not want to contribute to a cloudof doubt placing the validity of notarizations in jeopardy, for thatis antithetical to their own ultimate interests.135

3. Guiding Principle III: Employers snd Customers ShallEncourage Notaries to Take All Necessary Steps to ReasonablyIdentify Document Signers.

As already noted, identifying a document signer is thenotary's most important task."' Moreover, one of the most

128. The so-called "telephone notarization" without the documentsigner/oath taker being present is impermissible. Id.

129. See, e.g., United Servs. Auto Ass'n v. Ratterree, 512 S.W.2d 30, 32 (Tex.Civ. App. 1974) (detailing a case where a notarial oath was purportedlyadministered by telephone).

130. See, e.g., Gargan v. State, 809 P.2d 998, 999 (Alaska Ct. App. 1991)(describing a case where a signature on a letter was notarized but no oral oathwas administered, although the notarial certificate recited that the signer had'sworn" to it).

131. See, e.g., MICH. COMP. LAWS ANN. § 565.264 (West 1993); N.J. STAT.ANN. § 46:14-2.1(b) (West 1986 & Supp. 1999). See also Christensen v. Arant,358 N.W. 2d 200, 201 (Neb. 1984) (invalidating a sales contract because it wasnot notarized in the seller's presence).

132. NOTARY PUBLIC CODE, Guiding Principle V (1998).133. See generally Faerber, supra note 37 for further discussion of the

physical presence requirement.134. Christensen, 358 N.W.2d at 202.135. Peter J. Van Alstyne, The Notary's Duty to Meticulously Maintain a

Notary Journal, 31 J. MARSHALL L. REV. 777, 779 (1998). "The documentsigner has every right to expect that the notarization is being performedcorrectly and that it will withstand challenges to its validity." Id.

136. The ID Puzzle, supra note 117, at 9. "A Notary's most important duty isto positively identify each and every document signer to prevent forgery."

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common instances of document fraud occurs when notaries do notproperly identify the signers. ' Given the importance of thisaspect of the notary's duty, coupled with potential liabilityimposed upon employers for notarial misconduct, it is somewhatparadoxical that employers do not implement more safeguards andprocedures for properly identifying signers. Incredibly, someemployers even intentionally direct notary employees to performnotarizations without such identification.138 An employer orcustomer of a notary will sometimes introduce a signer to thenotary for the very first time and expect the notary to accept theword of the employer or customer for the purpose of identifying thesigner.9 But, such an identification is woefully insufficient andcannot be accepted by the notary.14 °

In the very early days of this country, notaries had virtuallyno difficulty in identifying document signers because thepopulation was small, people did not tend to travel great distancesand notaries knew just about everyone who sought theirservices.' Moreover, there were no documents of personalidentification generally available. At the present time of ease ofmobility, many individuals, seeking to have signatures notarized,confront notaries, but regularly, these notaries do not know theseindividuals.14 "Ironically, identification documents or ID cards,the least secure of the ways to identify a signer, because of theprevalence of fake IDs, have necessarily become the predominant

SORRY, No CAN Do!, supra note 106, at 3.137. See Faerber, supra note 37, at 754-60 (setting out several examples of

cases where notaries had not properly identified document signers).138. See, e.g., Dickey v. Royal Banks of Mo., 111 F.3d 580, 582 (8th Cir.

1997) (alleging that a bank officer had directed the bank's employee-notary tonotarize for an absent customer); In re Boyd, 430 N.W.2d 663, 666 (Minn.1988) (reciting that an attorney had directed a law firm's employee-notary tonotarize the signature of an absent deceased client).139. Faerber, supra note 37, at 750 n.2.140. Id. at 750. See also The ID Puzzle, supra note 117, at 9 (noting that

"[t]he safest and most reliable identification method is personal knowledge,strong familiarity with an individual resulting from numerous interactions inassociation with other people over a period of time sufficiently long toeliminate every reasonable doubt that the person has the identity claimed.")141. The ID Puzzle, supra note 117, at 9. "For most of the nearly 2,000 years

the office of Notary Public has existed, identification required little effort:most people were anchored in smaller communities, and Notaries personallyknew nearly everyone who appeared before them." Id. See also Anderson &Closen, supra note 2, at 846 for further discussion.142. The ID Puzzle, supra note 117, at 9. "Only in the 20th century has

identification of document signers become the Notary's overridingpreoccupation and problem.... [Tioday, almost everybody's on the move, andNotaries have the sobering responsibility of vouching ... for the identities oftotal strangers." Id. See also Anderson & Closen, supra note 2, at 846 (stating'[niotaries are now regularly confronted face-to-face by total strangers bearinga variety of documents of identification, all of which are subject to alterationand forgery.")

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identification method used by Notaries in our mobile society."'43

A thorough identification process merely takes a few minutesto complete. The document signer should be asked to produce twoor more documents of identification. These ID documents shouldinclude at least one government-issued document containing aphotograph of the signer, and together the ID documents, shouldalso include a description of the signer and his/her signature.'"Some state notary statutes, as well as the Model Notary Act, nowmandate what is regarded as constituting "satisfactory evidence ofidentity,"'45 and those laws tend to be consistent with the practicejust suggested.'46 The reason for this detailed identificationprocedure is that it provides the notary with at least three basesfor comparative analysis to determine signer identification.

First, there is the photograph and written physicaldescription that can be compared to one another. Second, there isthe photograph and physical description to compare to the actualappearance of the signer who presents himself/herself to thenotary.'47 Third, there are multiple signatures that can becompared to the signature on the document that is to be notarizedand the signature on the document of identification. 4 ' Moreover, asignature will also be placed in the notary journal (to be discussedbelow), providing a third signature for comparison. 9 Incidentally,

143. The ID Puzzle, supra note 117, at 9. See also Spot Those Imposters,NAT'L NOTARY, Jan. 1999, at 27 (stating that "[a]ll identification documentsshould be carefully inspected for evidence of imposture, alteration andcounterfeiting. There is no absolute and foolproof method to detect every falseID.")

144. The ID Puzzle, supra note 117, at 10.All authorities agree that the best IDs contain at least three elements: aphotograph, a physical description... and a signature .... In addition,the best IDs are issued by an official authority known to exercise a highstandard of care in screening applicants for the particular identificationdocument. State and federal agencies have proven to be the mostcareful screeners.

Id.145. MODEL NOTARY ACT, § 1-105 (11) (1984).146. "Some statutes enumerate the different types of acceptable

identification [see, e.g., CAL. CIV. CODE § 1185 (West 1992 & Supp. 1999); FLA.STAT. ANN. § 117.05(5) (West 1996 & Supp. 1998)], others merely call forsatisfactory evidence [see, e.g., OHIO REV. CODE ANN. § 147.53 (Banks-Baldwin1994 & Supp. 1997); IOWA CODE § 9E.9.6 (West 1992 & Supp. 1997)]."NOTARY PUBLIC CODE, Guiding Principle III, Art. B, § III-B-1 (1998).

147. Notaries often depend on photographs to identify people. Moreover, thephysical description on an ID document should match the photograph on thesame document, and both should match the signer's appearance.

148. Van Alstyne, supra note 135, at 783 (discussing the three signatures tobe compared-the signature on an ID document, the signature on thedocument to be notarized and the signature in the notary journal).

149. Id. Indeed, obtaining three signatures is particularly valuable becauseone is an established signature on an ID document that can be compared to apresently executed signature. The other two are contemporaneously executed

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as will be addressed in more detail later, the titles and serialnumbers of the ID documents should also be recorded in thenotary journal entry.50

If every notary statute in the country, and if every notarypublic in the country, were to routinely require all documentsigners to produce satisfactory evidence of identification, signerscould not possibly believe they will be able to have a documentnotarized without possessing and displaying proper ID documentsto notaries. No exceptions would be allowed, no matter how wellthe notary might know the signer. If every state notary law in thecountry mandated the notation in a mandatory journal entry ofthe serial numbers of two or more ID documents presented to anotary for each notarization, false identification of documentsigners would be drastically reduced, if not virtually eliminated.

It is likely that some employers directing impropernotarizations based upon incomplete identification procedures donot know any better. Their reasons may be based on assumptionsthat notarial laws are unimportant, that an imposter could nevervictimize them or that there is a genuine need to expedite atransaction. But the fact is that the work of impostors is not justsomeone else's problem. Such fraud occurs all too often.' Manyemployers do not understand that improper identification placestheir notary employees and their companies at risk for legalliability. Adhering to this proposed code can significantly reducesuch risks.

Customers cause all sorts of difficulties for notaries duringthe identification process. Some customers do not carry any IDdocuments with them, or carry documents that are expired ordeficient in providing the notary with the important features of arecent photograph, physical description and signature.Incidentally, while some expired ID documents would be quitesatisfactory in supplying the listed features, others might be tooold to have continuing reliability.5 ' Other customers may presentID documents that do not reflect recent changes in physicalappearance (resulting from weight loss or gain, illness, hairstyling, etc.), that do not reflect recent name changes (resultingfrom marriage or divorce, adoption, etc.) or that do not reflectrecent changes in handwriting and signing (resulting fromphysical injury, illness, etc.).

Requiring or allowing notaries to record the signer'sthumbprint is another useful method of verifying a signer's

signatures that should also appear similar. Id.150. See generally id.151. See id. at 802 (commenting that "American society is experiencing a

continued upswing in document fraud and forgery...152. Id. at 783.

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identity.5 3 Used in conjunction with an identification card such asa driver's license, thumbprinting is one of the latest and mosteffective ways to combat notarial fraud. 54 It deters many would-beimposters from attempting to commit a forgery.' This isevidenced by the success of a thumbprinting requirementinstituted in California. 1

16 After rising instances of real estate

fraud cost Los Angeles County residents millions of dollars, thestate legislated that notaries public must obtain a thumbprint, tobe imprinted in their notarial journals, from all persons signingcertain deeds affecting real property.5 ' This requirement imposesalmost no expense on the notary, the notary's employer orcustomer, or the state. The program was a "remarkable success"and "dramatically reduced fraud."'58 The success of the Californiaprogram has prompted some calls for all notaries nationwide toadopt similar measures."' As notarial thumbprinting becomesmore common, especially where thumbprinting by notaries ispermissive rather than obligatory, employers and customersshould not stand in the way of this progressive and improvedmethod for enhancing document security, even though it will beslightly more intrusive and time-consuming.

Employers and customers of notaries should not only refrainfrom interfering with the efforts of notaries to thoroughly identifydocument signers but also should encourage notaries to fully andaccurately identify every signer. It is in everyone's best intereststo do so. Both employers and customers should come to expectthat all signers will be required to produce two or more documentsof identification at notarization ceremonies. Such a practiceshould become routine.

153. See generally Vincent J. Gnoffo, Requiring a Thumbprint for NotarizedTransactions: The Battle Against Document Fraud, 31 J. MARSHALL L. REV.803 (1998) (advocating use of thumbprinting for notarial transactions).154. See Lasting Impressions, NAVL NOTARY, Mar. 1995, at 16 (touting the

value of fingerprinting in deterring document fraud and assistinginvestigation and identification of criminals); A Journal Thumbprint: TheUltimate ID, NAT'L NOTARY, May 1996, at 9 (noting same). Other forms ofbiometric identification methods, including "fingerprints, hand geometry,retina scans, and signature or voice verification" are on the verge ofwidespread availability. David A. Petti, An Argument for the Implementationof a Biometric Authentication System ("BAS"), 80 J. PAT. & TRADEMARK OFF.SOCY 703, 703 (1998). "[W]idespread regulation of biometrics remainsuncharted territory in the legal framework of the United States." Id.

155. Gnoffo, supra note 153, at 805.156. Id. at 813-14.157. Timothy J. Moroney, Business Associations and Professions; Notaries

Public--Journals, 27 PAC. L.J. 451 (1996).158. See Thumbprinting: 'The Notary's Best Anti-Fraud Weapon' Now,

NOTARY BULL., June 1995, at 1 [hereinafter Best Anti-Fraud Weapon]; CorieM. Anders, Thumbprints Squash Real Estate Fraud in L.A. County, S.F.EXAMINER, May 7, 1995, at El.159. See generally Gnoffo, supra note 153.

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4. Guiding Principle IV: Employers and Customers ShallEncourage Notaries' Use of Notarial Seals and Shall RespectNotaries' Control Over Such Seals.

Historically, the notary seal has served as the almostuniversally recognized symbol for the notary public.6 ' The originof the seal can be traced to ancient times.' Indeed, the seal wasso well recognized as a critical feature of any notarization that in1883, the United States Supreme Court announced judicial noticewould be accorded to the seal of a foreign country's notary.162 Asthe Supreme Court wrote, "the [C]ourt will take judicial notice ofthe seals of notaries public, for they are officers recognized by thecommercial law of the world." 163 The notary seal has occupied asignificant place in notary law and practice, and in commercialand governmental transactions in this country as well.

In thirty-six states, notaries are required by statute topossess and affix their seals on certificates of notarization.6 Evenin the states that do not require the use of notary seals, notariesare permitted to maintain and use seals as part of the notarizationceremony.1 5 In these latter jurisdictions, notaries do tend toobtain and regularly use seals because the affixation of a seal on anotarial certificate contributes to the integrity of a notarization,particularly for documents that will be sent across state lines or toforeign countries. 166 Indeed, the Notary Public Code declares:"[tihe Notary shall affix a seal on every notarized document .... ,,17

The Model Notary Act also mandates that a notary affix a seal to

160. Douglas M. Fischer, The Seal: Symbol of Security, NAT'L NOTARY, Nov.1995, at 10. "For more than 2,000 years, the Notary seal has symbolizedgenuineness." Id. In the United States, there has been relatively little changein the form of notary seal over the generations, having progressed only fromthe waxen seal to the embosser to the ink stamp to the computergenerated/electronic seal. Closen & Richards, supra note 4, at 727.

161. Closen & Dixon, supra note 3, at 874-75.162. Pierce v. Indseth, 106 U.S. 546, 549 (1883).163. Id. at 549.164. See Comparison of Notary Provisions, NAT'L NOTARY, May 1999, at 23

(listing 14 states not requiring the use of notary seals: Connecticut, Delaware,Iowa, Kentucky, Louisiana, Maine, Massachusetts, Michigan, New Jersey,New York, Rhode Island, South Carolina, Vermont and Virginia); WhichStates Do Not Require Notary Seals?, THE NOTARY, May/June 1999, at 4(listing same).

165. Fischer, supra note 160, at 12.166. See Closen, supra note 5, at 694-701 (discussing interstate and

international recognition of notarial acts). "Especially troublesome to theforeign recognition of United States notarizations is the fact that severalstates do not require the use of a seal, particularly an embossing seal which iscustomary in most other countries." Id. at 700. See also Fischer, supra note160, at 11 (stating that "[tioday the seal is virtually synonymous with theNotary.")

167. NOTARY PUBLIC CODE, Guiding Principle VII (1998).

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every notarial certificate.'68

The presence of a notary seal enhances a notarization in anumber of important respects. The placement of the seal on adocument lends an air of seriousness to the notarial ceremony,especially when, in connection with the issuance of a jurat, there isalso the administration of an oath to the signer.169 "The affixationof the Notary seal climaxes the notarial act. . ,,.70 Becausenotary seals throughout the country tend to be fairly comparablein content and design, they are immediately recognizable for theirintended purpose when they appear on documents. 171 Mostimportantly, the requirement of the attachment of a notary seal toa notarial certificate deters efforts to perpetrate document fraud.A scoundrel intent on committing such fraud would need either tosteal or counterfeit a seal and forge the notarization, to enlist theassistance of a corrupt notary or to deceive an honest and diligentnotary into affixing the seal to a document. 17 Furthermore, theplacement of a seal on a document makes document forgery andreproduction more difficult.'7 '

The seal belongs absolutely to the notary whose nameappears on it, regardless of who may have paid for the notarycommissioning fee or for the seal itself.174 Once the notarycommission expires or is terminated early for whatever reason, theseal becomes invalid and must be disposed of properly (often asmandated by statute).175 Some statutes call for the destruction ofexpired or invalid notary seals, some call for such seals to be

168. MODEL NOTARY ACT, § 4-203 (a) (1984).169. Tip Sheet, supra note 126, at 20.

A jurat is a notarial act that motivates a signer to make a truthfulstatement. While the jurat also requires personal appearance, thedocument's signer must affix a signature on the document in theNotary's presence and take an oath or affirmation, administered by theNotary, swearing that the contents of the document are true.

Id.170. Wield the Seal with Care, NAT'L NOTARY, July 1996, at 15.171. See Fischer, supra note 160, at 12 (noting the similarity of size and

shape of notary seals). "In terms of symbolism, the stamp and embosser are tothe Notary what the stethoscope is to the doctor." Id.172. See, e.g., True Life Story From A Notary, THE NOTARY, May/June 1999,

at 6 (describing a case in which someone stole a notary seal and used it tofalsely notarize a document).173. See Fischer, supra note 160, at 12 (stating that "[w]hen affixed

correctly, the traditional seal becomes an effective fraud deterrent that canfrustrate even high-tech forgery techniques .... [Tihe adeptly used embossercan deter fraud, especially when applied to multi-page documents.")174. MODEL NOTARY ACT, § 4-202 (1984).175. One problem can even be the misuse of an expired notary seal, because

people so regularly fail to notice the expiration date on the seal. See, e.g., In reTanner, 960 P.2d 399 (Utah 1988) (describing an attorney who hadfraudulently settled a case with the help of his wife who was a notary and whofalsely notarized a document with an expired notary seal).

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turned over to the appropriate governmental office.17 According tothe Model Notary Act, "[a] notary shall keep an official notarialseal that is the exclusive property of the notary and that may notbe... surrendered to an employer upon termination ofemployment."

177

Unfortunately, employers and customers of notariessometimes obtain control of notary seals and misused them. 78

Even non-notary lawyers have occasionally stolen or "borrowed"notary seals and have falsely notarized signatures on documents. 79

It is much easier for one to impersonate a notary and to forge anotarization if one possesses a real notary seal.8 ' Thus, numerousstates have enacted special statutes that criminalize the unlawfulpossession of a notary seal and/or the impersonation of a notary. 8"The Model Notary Act provides that the seal "may not be used byany other person" than the notary,'82 and defines the criminaloffenses of "impersonation" of a notary'83 and "wrongful possession"of a notary seal or a notary journal or record."8 As the ASN Codeof Ethics warns, the notary public must "exercise extreme care toinsure that the notarial seal, stamp and records are kept in a safeplace and are not used by any other person."88 Similarly, theNotary Public Code announces that the notary shall "not allowthis universally recognized symbol of office to be used byanother ... .8"

Therefore, employers and customers of notaries in thosestates that do not require notaries to possess and use seals shouldnot discourage notaries from affixing seals to documents. It is in

176. See, e.g., GA. CODE ANN. §§ 45-17-16 to 45-17-18 (1998); OHIO REV.CODE ANN. § 147.04 (Banks-Baldwin 1994 & Supp. 1998); W. VA. CODE §§29C-4-401 to 29C-4-404 (1998 & Supp. 1999) (requiring seal to be turned overto appropriate authorities).177. MODEL NOTARY ACT § 4-202 (1984).178. See, e.g., True Life Story From A Notary, supra note 172, at 6

(describing a case of fraudulent notarization by use of a stolen notary seal).179. See, e.g., In re Ballinger, 625 N.Y.S.2d 225 (App. Div. 1995). See also

Board of Profl Rasp. v. Neilson, 816 P.2d 120 (Wyo. 1991) (detailing the case ofan attorney who ordered a notary seal for a notary whose commission hadexpired and used that seal to fraudulently notarize deeds).

180. See, e.g., True Life Story From A Notary, supra note 172, at 6(describing a case in which a stolen notary seal was used to falsely notarize adocument).

181. See, e.g., FLA. STAT. ANN. § 117.05(9) (West 1996 & Supp. 1999); MO.ANN. STAT. § 486.380 (West 1987 & Supp. 1999); WASH. REV. CODE §42.44.050 (West 1991 & Supp. 1999); W. VA. CODE ANN. § 29C-6-204 (1998 &Supp. 1999).182. MODEL NOTARY ACT, § 4-202 (1984).183. Id. § 6-301 (1984).184. Id. § 6-302 (1984).185. CODE OF ETHICS OF THE AMERICAN SOCIETY OF NOTARIES (May 4,

1980).186. NOTARY PUBLIC CODE, Guiding Principle VII (1998).

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the best interests of employers and customers for diligent notariesto take the extra step of affixing their seals. Everywhere,employers and customers of notaries must abide by the legalrequirement that the notary seal is exclusively the property of thenotary. So, employers and customers must not ask to borrow oruse the notary seal, and must not surreptitiously take and/or usenotary seals. Employers of notaries are not entitled to takepossession of notary seals when their notary-employees leave theemployment or when the commissions of notary-employees expire.This rule applies even if the employer has purchased the seal forthe notary.

1 7

5. Guiding Principle V: Employers and Customers ShallEncourage Notaries' Use of Notarial Journals and Shall RespectNotaries' Control Over Such Journals.

One of the most common and effective ways employers ofnotaries can shield themselves from liability is by requiringnotary-employees to utilize notarial journals.'m An increasingnumber of jurisdictions require notaries to maintain journals.18 9

The Model Notary Act includes a substantial article directingnotaries to maintain thorough journal or record entries of theirnotarizations.9 0 Unfortunately though, most states still do notrequire such meticulous record keeping for notarial acts.'Journals protect notaries against unsubstantiated accusations ofwrongdoing, and encourage notaries to be thorough and usecaution in performing official duties.9 ' An effective notarialjournal entry should include the name and address of the signer,

187. Id. at Art. C, § VII-C-1 (1998). "The inking stamp and embosser are thesole property of the Notary." Fischer, supra note 160, at 13.188. See generally Gnoffo, supra note 153, at 804-06.189. Van Alstyne, supra note 135, at 778 n.5. Notaries are required to

maintain journals in Alabama, Arizona, California, Colorado, Hawaii,Maryland, Mississippi, Missouri, Nevada, Oklahoma, Oregon, Pennsylvania,Tennessee, Texas and the District of Columbia. Id. Kentucky, Louisiana,North Dakota and Ohio require notaries to journal only notarial protests. Id.Journal record keeping is recommended by state officials in Alaska,Connecticut, Florida, Idaho, Maine, Massachusetts, Michigan, Nebraska, NewHampshire, New Mexico, South Dakota, Utah, Vermont and Wisconsin. Id.190. MODEL NOTARY ACT §§ 4-101 to 4-104 (1984).191. See Van Alstyne, supra note 135, at 778 n.5 (listing states that mandate

use of a journal). Only 14 states currently require journals for generalnotarial acts. Id.192. VAN ALSTYNE, supra note 5, at 38. See also True Life Story From A

Notary, supra note 172, at 6 (describing a case where a notary's seal wasstolen and used to falsely notarize a document, where the notary had kept athorough journal with no chronological entry for the falsely notarizeddocument, and where the police questioned the notary about his involvementin the fraud). According to the notary, "I feel that the only thing that savedme from prosecution in this case was maintaining a detailed notary journal."Id.

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the date, the type of document, the type of service provided (suchas whether a jurat or acknowledgment was produced and whetheran oath was administered), the place or venue of the notarization,the signer's signature, the forms of identification supplied alongwith their serial or code numbers, the amount of any fee chargedand possibly the signer's thumbprint."' Simply put, a properjournal entry in a bound book of chronological entries evidencesvery convincingly that a notary has taken his or her dutiesseriously and has exercised reasonable care."

Because of the tremendous value of thorough journals tonotaries, employers and customers of notaries, the country'sleading authorities strongly advocate the unwavering recording ofa journal entry for each notarization. The Notary Public Codeprovides: "[t]he Notary shall record every notarial act in a boundjournal or other secure recording device and safeguard it as animportant public record."'95 This view is also supported, as alreadynoted, by the provisions of the Model Notary Act."6 Numerousnotary experts advocate for the regular use of notary journals."7

Indeed, we do not know of any notary authority that disagreeswith this procedure.

Although the maintenance of such a notary journalundoubtedly doubles the time occupied by each notarizationceremony, the small amount of extra time expended is a smallprice to pay for the assurance of a correct and valid notarization.Even if a notary makes an innocent mistake in a notarizationprocedure, it would usually be. caught or would be prevented if ajournal were kept, because the content of the journal and thenotary certification would usually disagree, and anyone simplyreviewing the transaction would notice the discrepancy. Anomission from a notarial certificate may be cured by the contentsof a notary journal or by the testimony of a notary whoserecollection is refreshed by the contents of a journal. 9'

193. See Van Alstyne, supra note 135, at 783. See generally Gnoffo, supranote 153.

194. Van Alstyne, supra note 135, at 802.An important reason the notary journal has no peer in comparability ofprotection to the notary and the public is because it is the least intrusivesolution, for the greatest good, for the greatest number of people ....The properly maintained notary journal is indeed the notary's mostvalued tool of the trade.

Id.195. NOTARY PUBLIC CODE, Guiding Principle VIII (1998).196. MODEL NOTARY ACT §§ 4-101 to 4-104 (1984).197. See generally Van Alstyne, supra note 135, at 777-802.198. The general rule has been that notarizations will be held valid if they

are in substantial compliance with legal requirements. Thus, a court would beinclined to uphold a notarization if the court were confident of the true contentof a notarial certificate and that no fraud had occurred. See Closen, supranote 5, at 684-85 (stating "[t]he courts generally accept the substantial

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Historically, notaries have bitterly opposed relinquishingcontrol over their journals.' Some state notary statutes haverecognized the importance of the notary's control and safe-keepingof the journal.2" For example, in Maine, notaries "[s]hallsafeguard and retain exclusive custody of these records. Thenotary may not surrender the records to another notary or to anemployer."2 °' And, California requires that notary seals andjournals be kept under lock and key to prevent their unauthorizedaccess and misuse."2

A number of states have adopted a different position,requiring that the notary submit the journal to a governmentagency when the person no longer serves as a notary.02 The ModelNotary Act adopts this position.2 4 However, this practice has beencriticized as antiquated and improper.2 0 A journal is the notary'smost valuable protection against accusations of fraud ormisconduct.2 ' Moreover, proper journal entries establish business

compliance doctrine in notarization cases. [Therefore,] substantial compliancewith the notarization procedure [is] valid. . . . Thus, courts will allowtestimony of witnesses to the notarization or other kinds of evidence to corrector supplement patent errors and omissions on certificates of notarization");Gargan v. State, 809 P.2d 998, 999 (applying the substantial compliancedoctrine); Farm Bureau Fin. Co. v. Carney, 605 P.2d 509, 514-15 (Idaho 1980)(applying the substantial compliance doctrine and recognizing evidenceoutside the notarial certificate to uphold it).199. One of the earliest notaries, William Aspinwall of the Massachusetts

Bay Colony, fought strongly against having to pass his notary records to hissuccessor. He told the General Court in 1652, "[t]he bookes are mine own,bought at my owne chardge & Register therein my owne voluntary & handyworke, and as proply mine as any thing I possess is mine." Notary Journals inEarly American History, THE NOTARY, Nov.IDec. 1998, at 4.200. "The journal must be kept in the exclusive custody of the notary .... "

MODEL NOTARY ACT § 4-104(d) (1984). "The best strategy for protecting thenotary and the public's need for access to the notary's journal is to statutorilyrequire the notary to permanently retain the journal." Van Alstyne, supranote 135, at 792. Some 21 states require the notary journal to be surrenderedto a governmental agency upon the termination of a notary's commission. Id.at 793.201. ME. REv. STAT. ANN. tit. 4, § 955-B (West 1998).202. CAL. GOV'T. CODE § 8206(a)(1) (West 1992 & Supp. 1998). See also

Landmark Law Mandates Protection of Journal, Seal, NOTARY BULL., Oct.1997, at 13.203. Handing Your Notary Journal to the Government for Safe-Keeping: It

May Not Be as Safe as You Think, THE NOTARY, Sept./Oct. 1997, at 4[hereinafter Safe as You Think]. States requiring such submission areAlabama, Alaska, Arkansas, Arizona, California, Colorado, Hawaii, Kentucky,Maine, Massachusetts, Michigan, Minnesota, Montana, Nevada, NewHampshire, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Texas,West Virginia and Wisconsin. Id.204. MODEL NOTARY ACT § 4-104(e) (1984).205. Safe as You Think, supra note 203, at 4. See also, Van Alstyne, supra

note 135, at 788-94.206. Safe as You Think, supra note 203, at 4.

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records upon which the notaries can rely. °7 Thus, notaries maywish to retain their journals even though their commissions haveexpired or have been terminated.28 Disputes and litigation aboutnotarizations may not arise until years later, and notaries wouldbe well served by having their journals available at that time."9

Journal entries help protect notary customers, employers, and thegeneral public by ensuring that proper notarial procedures arefollowed. Therefore, employers and customers of notaries shouldcooperate with notaries and encourage the maintenance of athorough notary journal, and employers should not attempt tointerfere with notary-employees' control over their journals.210

6. Guiding Principle VI: Employers and Customers Shall NotSeek Legal Advice from Non-Lawyer Notaries.

Unless notaries public are also licensed attorneys, they arenot qualified to provide legal advice to customers beyond providingbasic information about notarizations (including notarialcertificates).21' If a non-lawyer notary goes further than theprovision of fundamental information about a notarization, and forexample, expresses views about the legal meaning or consequencesof the content of documents or to advise customers about legalmatters, then the notary engages in the unauthorized practice oflaw.212

The Notary Public Code, the Model Notary Act and manystate notary statutes expressly prohibit notaries from undertakingthe unauthorized practice of law. 22 Although we believe the Model

207. Id.208. See Van Alstyne, supra note 135, at 792.

As there is no defined statute of limitations on liability for theperformance of a notarial act, there are no instructions as to how long anotary ought to personally retain the notary journal .... The effectivelife of a living will or durable power of attorney will vary with eachindividual.

Id.209. Id. "The notary should be required to retain the journal for life." Id.210. "The journal must be kept in the exclusive custody of the notary, and

may not be... surrendered to an employer upon termination of employment."MODEL NOTARY ACT § 4-104(d) (1984). "It is not uncommon for employers ofnotaries to discourage notary journal keeping because it might inconveniencethem or their clients." Van Alstyne, supra note 135, at 778.211. See NOTARY PUBLIC CODE, Guiding Principle VI (1998) (stating at that

"[t]he Notary shall act as a ministerial officer and not provide unauthorizedadvice or services.")212. See id. at Art. B, § VI-B-2 (1998) (stating that "[t]he Notary who is not

an attorney, or a professional duly trained or certified in a pertinent field,shall not prepare a document for another person or provide advice on how tofill out, draft or complete a document.")213. See id. at Art. C, § VI-C-1 (1998); MODEL NOTARY ACT § 3-106 (1984). A

number of notary statutes prohibit notaries from engaging in theunauthorized practice of law and provide that such activity constitutes

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Notary Act would overly restrict the notary by prohibiting eventhe selection of notarial certificate language, the Act also statesthat "[a] non-attorney notary... may not assist another person indrafting, completing, selecting, or understanding a document ortransaction requiring a notarial act." 1' Some notary statutes focusspecial attention on the deceptive practice of a notary adopting thetitle notario publico, which customarily describes a lawyer-notaryin many Hispanic countries. 15 And everywhere in the UnitedStates, there are court rules and general statutes, includingcriminal statutes, which forbid anyone not licensed in theappropriate jurisdiction from engaging in the unauthorizedpractice of law. 16

It is probably rare that a non-lawyer notary would volunteerunsolicited legal advice about a document or transaction. Instead,employers and especially customers of notaries may tend to asknotaries about issues beyond the notarization itself. However,employers and customers of notaries should not tempt non-lawyernotaries to undertake the unauthorized practice of law by asking

grounds for revocation of a notary commission or removal from office, and forinjunctive relief to stop such activity. See, e.g., Mo. ANN. STAT. §§486.385(1)(6), 486.390 (West 1987 & Supp. 1999); W. VA. CODE § 29C-7-101(g)(1998 & Supp. 1999). The Illinois statute governing notarial conduct states asfollows: "[n]o notary public shall be authorized to prepare any legalinstrument, or fill in the blanks of an instrument, other than a notarycertificate; however, this prohibition shall not prohibit an attorney, who is alsoa notary public, from performing notarial acts for any document prepared bythat attorney." 5 ILL. COMP. STAT. 312/6-104(h) (West 1998). The Illinoisstatute further provides:

[u]pon his own information or upon complaint of any person, theAttorney General or any State's Attorney, or their designee, maymaintain an action for injunctive relief in the circuit court against anynotary public who renders, offers to render, or holds himself or herselfout as rendering any service constituting the unauthorized practice oflaw. Any organized bar association in this State may intervene in theaction, at any stage of the proceeding, for good cause shown. The actionmay also be maintained by an organized bar association in this State.These remedies are in addition to, and not in substitution for, otheravailable remedies.

5 ILL. COMP. STAT. 312/7-109 (West 1998).214. MODEL NOTARY ACT, § 3-106(a) (1984). The NOTARY PUBLIC CODE also

prohibits a notary from "determin[ing] or prescrib[ing] the particular type ofnotarial act or notarial certificate required in a given transaction." NOTARYPUBLIC CODE, Guiding Principle VI, Art. B, § VI-B-3 (1998).215. See, e.g., FLA. STAT. ANN. § 117.01 (West 1999). "Please, understand

that the office of Notary in the United States is completely different from theoffice of Notario Publico in Spanish-speaking nations." SORRY, NO CAN DO!,supra note 106, at 6.216. See, Debra Baker, Is This Woman a Threat to Lawyers?, A.B.A. J., June

1999, at 54 (bearing the subtitle/abstract: "[a] resurgence of unauthorizedpractice complaints is raising questions about whether the court of publicopinion will judge lawyers as guardians of the common good or protectors oftheir own turf.")

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notaries questions about the content of documents or about legalissues relating to documents. Indeed, employers and customerssimply should not be seeking legal advice from someone like a non-lawyer notary who is not qualified to provide it. However, notariesshould certainly be qualified to answer questions and adviseparties about all features of a notarization, including the kind ofnotarial certificate appropriate for a particular document.117 Whena notary is unaware of the correct answer to a proper question, thenotary should answer honestly that he or she is unsure.

Admittedly, there are areas of real uncertainty in situationsin which notaries hold some other professional licensures, such aslicensed real estate brokers, certified public accountants, licensedhealth care professionals and so on. When such professionals arecalled upon to notarize signatures on documents dealing withsubstantive matters within the subjects of their professionalqualifications, such professionals are entitled to express viewswithin their fields of professional competence, short of engaging inthe unauthorized practice of law.218 Hence, the prohibition againstthe unauthorized practice of law in the Model Notary Act "does notpreclude a notary who is duly qualified in a particular professionfrom giving advice relating to matters in that professional field."21'

Realistically, it is probably the case that among non-lawyernotaries who engage in the unauthorized practice of law, thosewho are professionals in other fields most often engage in suchunauthorized practice because they know more about legalmatters relating to their fields of expertise than ordinary notaries.At the present time, for a host of reasons beyond the scope of thisArticle, there seems to be heightened focus within the legalprofession on the unauthorized practice of law.22 Thus, notariesshould especially beware of this area of concern.

7. Guiding Principle VII: Employers and Customers Shall NotSeek or Encourage Notaries to Provide Endorsements orTestimonials for Persons, Services or Products.

During the 1998 election campaign, Illinois Congressional

217. This view is contrary to the view expressed in the Notary Public Code.See NOTARY PUBLIC CODE, Guiding Principle VI, Art. A, § VI-A-1 (1998).218. See Baker, supra note 216, at 55-56 (noting recent complaints of

unauthorized practice of law committed by real estate closers, bankers,funeral directors, accountants, do-it-yourself law publishers and independentparalegals).219. MODEL NOTARY ACT § 3-106(b) (1984).220. See Baker, supra note 216, at 56 (pointing out that a "number of

analysts trace the recent spate of unauthorized practice cases to frustrationand fear [within the legal profession] over increased competition frombusinesses whose services traditionally were distinct from law practice .... ")According to Baker, there are "an increasing number of actions claimingnonlawyers are engaging in the unauthorized practice of law." Id. at 55.

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candidate Gary Mueller managed to garner a great deal of mediaattention by becoming the first and only candidate to sign anaffidavit of integrity attesting to his purity from just about allvices, including adultery, drug use, spousal abuse and so forth.22'Standing at the candidate's side throughout his publicity stuntwas a poster-size enlargement of the affidavit and an Illinoisnotary public.2 With cameras rolling, the notary administered anoath to the candidate about the truthfulness of the affidavit.Unfortunately, no one seems to have noticed that the involvementof the notary public in this promotion was unseemly and improper,and might serve as a dangerous precedent for future abuse of thenotarial office and deception of consumers and voters. When thenotary-a public official commissioned by the state-knowinglyparticipated in this media event, the notary provided theequivalent of a testimonial supporting the candidate's oath andaffidavit. There have been other incidents of publication ofnotarial signatures and seals to lend the appearance of integrity tocommercial schemes.223 Participation in such conduct is unethicalfor a notary, who is a public official sworn to serve as an impartialwitness. Thus, employers and customers of notaries should notrequest that notaries participate in such commercialization.

The Model Notary Act prohibits notary testimonials, saying:"[a] notary may not endorse or promote any product, service,contest, or other offering if the notary's title or seal is used in theendorsement or promotional statement. "' The Notary PublicCode forbids the notary from "allowfing] others to use or reproducethe Notary's seal in a commercial advertisement, solicitation ortestimonial."22 ' The ASN Code of Ethics directs each notary "tomaintain a professional manner suitable to the office.. ." and "touphold the trust placed in me by the public I serve."22 6

The problem is that the general public does not appreciate thevery limited function notaries perform in identifying documentsigners and administering oaths to the signers of some kinds ofdocuments. Notaries do not verify the truth of the contents ofaffidavits and other notarized documents, but a lot of people do not

221. Cheryl Wetzstein, Pledge of Integrity to Win Votes Could Prove a RiskyPloy: Voters Do Not Seem to Mind Lapses, WASH. TIMES (D.C.), Oct. 28, 1998,at A2, available in 1998 WL 3462198.222. The incident was even shown on prime-time national television news

broadcasts.223. See, e.g., Unknowingly Swept Up In Sweepstakes, Notary Relates Her

Recent Nightmare, NOTARY BULL., Aug. 1996, at 3 (describing the case of anotary who "learned that her Notary seal and signature were beingreproduced by the thousands to lend credibility to an internationallydistributed sweepstakes").224. MODEL NOTARY ACT § 3-105 (1984).225. NOTARY PUBLIC CODE, Guiding Principle VII, Art. B, § VII-B-3 (1998).226. CODE OF ETHICS OF THE AMERICAN SOCIETY OF NOTARIES (May 4,

1980).

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understand this narrow notarial role. The notary public is swornto be an impartial witness. As a public official, a notary cannotbecome a partner in private commercialization, whether forpolitical candidates or consumer products and services. The titleis notary public, not notary private.227 A notary is a public officeror representative of the government whose official duty is to helpprevent document fraud, not to contribute to consumer and voteracceptance and occasional deception.

It would be a grave mistake -of judgment for notaries to lendtheir signatures and seals to efforts to promote candidates, goodsand services. Also, employers and customers of notaries shouldnot encourage notaries to engage in crass commercialization ofused cars, insurance products, home loan and financial services,and so on.

8. Guiding Principle VIII: Employers and Customers ShallBecome Reasonably Informed of Applicable Notarial Laws andEthical Obligations.

In some states, notaries must certify that they are familiarwith and will follow applicable notarial laws.2 8 A few other statesrequire candidates to pass an examination before receiving theircommissions (and the Model Notary Act also provides for notaryapplicants to pass a written examination)22 9 or to successfullycomplete a notarial training class.2 Both the ASN and the NNAare not-for-profit educational organizations and both promotenotary education.23' The ASN Code of Ethics urges notaries to"keep informed of the law regarding the duties and powers of theoffice of Notary Public ... and not compromise that law,"232 and theNNA Notary Public Code requires that "[t]he Notary shall seekinstruction on notarization, and keep current on the laws,

227. See Legislators Make the Rules, But You Can Make the Difference, NAT'LNOTARY MAG., May 1996, at 3 (describing the possible effect of a proposedNew Jersey law, the article says "Get Lost, I'm A Notary Private").

It would ... be a dangerous public disservice [for a notary to providetestimonial endorsements of contests, services, and products] becausemany people mistake a Notary's involvement for governmentalendorsement and may be deceived into believing that an otherwiseunremarkable, or even shoddy, product is better than others.

'Am I Being Ethical?', supra note 4, at 7.228. See, e.g., 5 ILL. COMP. STAT. ANN. 312/2-104 (West 1999); FLA. STAT.

ANN. § 117.01(3) (West 1996 & Supp. 1998); W. VA. CODE § 29C-2-204 (1992 &Supp. 1998).229. MODEL NOTARY ACT § 2-203 (1984).230. See, e.g., N.C. GEN. STAT. § 1OA-4(b)(3) (1998).231. See generally Valera, supra note 16, at 971; Lisa K. Fisher, American

Society of Notaries: History of a Legacy, 31 J. MARSHALL L. REV. 1001 (1998).232. CODE OF ETHICS OF THE AMERICAN SOCIETY OF NOTARIES (May 4,

1980).

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practices and requirements of the notarial office." 3 However,education requirements and testing procedures are not evenfollowed in a majority of states. Nor are they generallysupplemented by private businesses requiring their notary-employees to actually learn about the law, practice and ethics oftheir positions.

Moreover, many employers themselves are not familiar withexisting notarial law, making it impossible for them to effectivelysupervise their notary-employees, institute proper procedures orensure that such procedures are followed. Employers educated asto applicable notarial law can establish various safeguards so thatnotary-employees are less likely to commit either negligent orintentional notarial misconduct. 34 Uninformed employers leavethemselves more vulnerable to lawsuits for the misconduct of theirnotary-employees." 5

Even customers of notaries should not blindly place theirtrust in another party, such as a notary. Customers ought tobecome reasonably well-informed about notarial requirements as away of accepting some meaningful responsibility for their owntransactions. By analogy, no one should sign a document withoutreading and understanding it. If upon reading it, one cannot fullyunderstand its application and meaning, one should makeappropriate inquiries to overcome any lingering doubts. Commonsense dictates that one should also become reasonablyknowledgeable about notarial requirements to satisfy the demandsof minimal diligence and prudence.

"Ignorance of the law excuses no man from practicing it."23 6 Ifboth employers and customers of notaries become more familiarwith notarial practices, employers and customers will gain aheightened appreciation for the importance of a notarization and aheightened respect for the office of notary public. Additionally, theprospect that employers and customers will tempt notaries awayfrom the path of thorough and correct notarial procedures willdiminish. 37 Informed employers and customers will interject

233. NOTARY PUBLIC CODE, Guiding Principle X (1998).234. See Nancy Perkins Spyke, Taking Note of Notary Employees: Employer

Liability for Notary Employee Misconduct, 50 ME. L. REV. 23, 57 (1998)(offering suggestions to notary employers as to how they might avoid liabilityfor notary employee's acts).235. Id.236. Addison Mizner, quoted in MICHAEL D. SHOOK & JEFFREY D. MEYER,

LEGAL BRIEFS 156 (1995).237. "After teaching thousands of notary public orientation and refresher

seminars, it was quite surprising to discover how little is known about notarialpowers and duties, particularly among commissioned notaries public."PIOMBINO, supra note 7, at xxi. It follows that, if notaries are presently ill-informed about their roles and ethical responsibilities, then employers andcustomers of notaries (being even further removed) will be less knowledgeableand attuned to such matters.

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fewer errors into the notarial process, thereby providing less of achallenge to notaries who must detect and correct such errors.

9. Guiding Principle IX: Employers Shall Not Attempt to Direct orRestrict Notaries' Performance of Official Duties.

A common misconception among employers is that they havevirtually complete authority over all of their employees duringwork hours, including employee-notaries. However, employerswho harbor this view are quite mistaken. Although announced inconnection with another employment issue, the CaliforniaSupreme Court made a point that applies here: "the employer isnot so absolute a sovereign of the job that there are not limits tohis prerogative."238 Employers are especially inclined to think theyhave virtually unbridled authority over employee-notaries ifemployers have made the holding of a notary commission a jobqualification and/or have paid for all of the fees and costsassociated with their employees becoming notaries or renewingnotary commissions.2"9 The natural extension of this view is thatthe sole purpose of employee-notaries is to advance companyinterests, not to provide services to those other than clients of theemployers.24° Again, this attitude is especially prevalent amongemployers who recognize that notaries charge trivial fees fornotarial services or charge no fees at all, and that employers donot share in those fees.

Only a handful of states permit employers to limit employee-notaries during the period of their employment to servicing solelyclients of the employers' businesses.2"' The fundamental reason sofew statutes allow for this restriction is that the notary is a publicservant with the obligation to provide an important service to thegeneral public. As the New York Court of Appeals once observed,"[t]he very designation of 'notary public' indicates a relation which

238. Tameny v. Atlantic Richfield Co., 610 P.2d 1330, 1336 (Cal. 1980).239. Closen, supra note 5, at 677-78 (stating that employers may "encourage

the performance of notary services by their notary-employees," and citing theexample of a bank which may "pay the expenses associated with [a bankemployee] becoming and remaining a notary....")240. But see 'Am I Being Ethical?', supra note 4, at 9. "[An ethical Notary

who is truly an impartial public officer [would not] withhold notarial servicesbased strictly on a signer's status as a client or non-client." Id.241. See, e.g., CAL. GOVT CODE § 8202.8 (West 1999).

[A] private employer of a notary public who has entered into anagreement with his or her employee... may limit, during theemployee's ordinary course of employment, the providing of notarialservices by the employee solely to transactions directly associated withthe business purposes of the employer.

Id. See also New Bill May Limit Notaries' Public Service, NOTARY BULL.,Apr. 1995, at 10 (reporting about legislation proposed in New Jerseyallowing notary-employees to refuse requests for notarizations of non-business documents or from non-employees).

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the incumbent of the office sustains to the body politic."2 2 TheModel Notary Act declares that "[a] notary shall perform notarialacts in lawful transactions for any requesting person who tendersthe appropriate fee.. . ." The Notary Public Code persuasivelyestablishes the appropriate standard: "[t]he Notary shall, as agovernment officer and public servant, serve all of the public in anhonest, fair and unbiased manner."" The Code goes on tosquarely confront the issue of refusal of notarial service to non-customers, mandating that "[t]he Notary shall not refuse toperform a lawful and proper notarial act solely because the signeris not a client or customer of the Notary or the Notary'semployer."' 4 The ASN Code of Ethics also provides that a notarymust "treat each individual fairly and equally."46

Even in those few states that allow employers to restrictemployee-notaries to servicing only the employers' businessclients, we hope that employers will not do so. As noted earlier,the title is notary public, not notary private.24' Hence, employersshould not be permitted to limit notaries to servicing exclusivelyprivate business interests, nor should employers do so even ifstatues allow this.248 And, notaries who do not ordinarily chargefor their services must not charge fees to people who are not theemployer's customers.249 The Notary Public Code announces that"[tlhe Notary shall not base the charging or waiving of a fee forperforming a notarial act, or the amount of the fee, on whether thesigner is a client or non-client, or a customer or non-customer, ofthe Notary or the Notary's employer."25'

As another concern, if employers were allowed to restrict orlimit notarial services, employers might do so for discriminatoryand unlawful reasons. Employers might direct notaries not toservice disabled signers because of the extra time that would beneeded to perform such notarizations. 251 Employers might impose

242. People v. Rathbone, 40 N.E. 395, 396 (N.Y. 1895).243. MODEL NOTARY ACT § 3-103(b) (1984).244. NOTARY PUBLIc CODE, Guiding Principle 1 (1998).245. Id. at Art. A, § I-A-4 (1998).246. CODE OF ETHICS OF THE AMERICAN SOCIETY OF NOTARIES (May 4,

1980).247. See supra note 227 and accompanying text for further discussion.248. NOTARY PUBLIC CODE, Guiding Principle I, Art. A, § I-A-4 (1998).249. Id. at Art. B, § I-B-2 (1998).250. Id.251. See Closen, supra note 5, at 686-87.

Clearly, some notarizations may be made more difficult and time-consuming because of circumstances beyond the control of the parties.To illustrate, some elderly citizens may possess little evidence of theirown identities. Some people suffering from physical disabilities mayfind difficulty in signing their names. Some individuals with illnesses ordisabilities, some people of advanced age, and some individuals havinglittle resources may effectively be confined at home, in hospitals, or inlong-term care facilities and may not be able to travel to the standard

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their prejudices upon employee-notaries and prohibit notarialservices due to the customer's race, religion, age, ethnicity, gender,political views or sexual orientation. That cannot be tolerated oreven risked. The Notary Public Code rightly declares "[t]heNotary shall not refuse to perform a lawful and proper notarial actbecause of the signer's race, nationality, ethnicity, citizenship,religion, politics, lifestyle, age, disability, gender or sexualorientation, or because of disagreement with the statements orpurpose of a lawful document."

252

10. Guiding Principle X: Employers and Customers Shall ReportNotary Misconduct to Appropriate Agencies.

Every professional should bear the responsibility to report themisconduct of fellow professionals, for fairly obvious reasons.52

First, fellow professionals should be well qualified to detectmisconduct. Second, if misconduct goes unreported, the dangerexists that the misconduct will continue unabated. Still worse,those who get away with misconduct may actually be induced toengage in it even more. Worst of all, other professionals whowitness misconduct and observe that it is not reported,investigated and sanctioned may be tempted to cross the ethicalline and to also engage in misconduct. Such a downward spiral ofmisconduct must be avoided. In the legal profession, as just oneillustration, both ethical codes and case decisions impose areporting obligation." ' Third, the lack of esteem that the office ofnotary public is given is a serious problem. If notaries do notreport the misconduct of fellow notaries, their office loses evenmore respect.

Every citizen, notary or not, who observes professionalsengaging in misconduct should report the misconduct to theappropriate agency. This reporting obligation is appropriate, inpart, because our law in numerous circumstances goes so far as to

sites where notaries are available-so that notaries may be asked totravel to accommodate such persons. Even those involuntarily confinedin jails and prisons should have reasonable access to the services ofnotaries.

Id.252. NOTARY PUBLIC CODE, Guiding Principle I, Art. A, § I-A-3 (1998).253. Attorneys, for example, have a professional obligation to report certain

misconduct of fellow lawyers. MODEL RULES OF PROFESSIONAL CONDUCT Rule8.3 (1997). "As a responsible public officer, the Notary should report allattempts to perpetrate frauds to proper law-enforcement authorities." Am IBeing Ethical?', supra note 4, at 9. In some professional settings, such asthose relating to lawyers, it may be difficult to determine who are the properauthorities to whom misconduct is to be reported. See, e.g., Elizabeth Cohen,Who Needs To Know?, A.B.A. J., Apr. 1999, at 77 (bearing the subtitle "WhenReporting Lawyer Misconduct, Just Telling the Judge Isn't Enough").254. See, e.g., MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 1-103

(1999); In re Himmel, 533 N.E.2d 790, 790 (Ill. 1988).

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hold parties responsible for the misconduct of other people.Businesses may be legally responsible for the misconduct of theiremployees and even their customers. 255 Dram shops and socialhosts may be liable for the drunken actions of their patrons andguests. 6 Parents may be legally responsible for the misconduct oftheir minor children,257 and psychiatrists may be liable for theconduct of their patients.5 8 As noted above, licensed attorneysbear a professional responsibility to report the misconduct of theirfellow lawyers, in part because attorneys are licensed by the stateand become officers of the court.259 Everyone should feel theethical responsibility to report crime and professional misconduct.This reporting burden must be regarded as an obligationparticularly in the notarial context because a notary is more thanjust a professional. A notary is a public official, who breaches thepublic trust when engaging in misconduct."5

Admittedly, although we propose this reporting obligation fornotary employers and notary customers, we realize that the ASNCode of Ethics fails to announce an obligation of fellow notaries toreport one another when they observe or discover notarialmisconduct.2 6 ' This omission from the ASN Code of Ethicsconstitutes an important oversight. The state agencies thatoversee notarial functioning are too understaffed and underfundedto effectively root out unethical notarial practices without theassistance of others, mainly the constituents in the notarial

255. See, e.g., Lockard v. Pizza Hut, Inc., 162 F.3d 1062 (10th Cir. 1998)(holding that an employer may be liable for sexual harassment perpetrated byhis or her customers). See also David G. Savage, Look the Other Way and Pay,A.B.A. J., July 1999, at 34 (discussing a recent U. S. Supreme Court decision"holding schools and colleges liable if their officials ignore severe student-on-student harassment").256. See, e.g., Kelly v. Gwinnell, 476 A.2d 1219 (N.J. 1984) (finding social

host liability to third parties); Clark v. Mincks, 364 N.W.2d 226 (Iowa 1985)(holding same). See also Matthew C. Houchens, Comment, Killer Party:Proposing Civil Liability for Social Hosts Who Serve Alcohol To Minors, 30 J.MARSHALL L. REV. 245 (1996) (discussing both dram shop statutory liabilityand common law liability).257. RESTATEMENT (SECOND) OF TORTS § 316 (1999).258. See, e.g., Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334 (Cal. 1976)

(holding psychiatrist to legal duty to give warning to the specifically identifiedtarget of threats of violence of his or her patient). See also Michael L. Closen& Scott H. Isaacman, The Duty to Notify Private Third Parties of the Risks ofHIV Infection, 21 J. HEALTH & HOSP. L. 295 (1988) (discussing the duty ofdoctors to warn sexual partners of patients with HV).259. See, e.g., MODEL CODE OF PROFESSIONAL RESPONSIBILITY DR 1-103

(1999); In re Himmel, 533 N.E.2d at 790.260. See supra note 48 and accompanying text.261. See CODE OF ETHICS OF THE AMERICAN SOCIETY OF NOTARIES (May 4,

1980). The Notary Public Code covers this point: "[t]he Notary shall report tothe commissioning authority violations of the statutes, regulations anddirectives governing the conduct of Notaries." See NOTARY PUBLIC CODE,Guiding Principle X, Art. C, § X-C-1 (1998).

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process.262 If proper notarial functioning is really to be takenseriously, and if notaries public in this country are to really beregarded as professionals, steps such as this reporting obligationmust be implemented and faithfully observed.

CONCLUSION

The world has achieved brilliance without conscience. Ours is aworld of nuclear giants and ethical infants."'3

Although General Bradley's observation of the late 1940'sdescribed foreign countries and their governmental leaders,regrettably his remark could also describe the broadercontemporary decline of ethical standards and behavior in thiscountry. Notaries public, their employers and their customershave not been immune from the dishonesty virus that has afflictedso many. We can no longer leave ethics to chance. The NotaryPublic Code of Professional Responsibility and the proposed Codeof Professional Responsibility for Certification Authorities264 pointus in the right direction. However, more action is warranted.

If a set of guidelines for the ethical conduct of notary-employers and notary-customers were adopted by the membershiporganizations of notaries public, and if those guidelines werepublished, widely distributed and prominently posted in the placesof business of notaries public, those guidelines would create asubstantial positive effect. Employers and customers of notariescould not claim ignorance of notarial practices as often. Perhapssome employers and customers who frequently deal with notaryissues would even be inspired to find out more about notarialethics, law and practice. Neither notaries, nor their employers norcustomers can be allowed to languish as "ethical infants." Eachshould possess and exhibit a "conscience" consistent with thehighest standard of notarial service. Adherence to this proposedCode will be advantageous to employers and customers of notariesbecause such adherence will improve the quality of notarial serviceand will reduce their potential liability-the proverbial win-winsituation.

The ten principles suggested represent rules of reason andare so clearly pertinent that they are not controversial in theirsubstance. Most are drawn more or less directly from notary

262. John T. Henderson & Peter D. Kovach, Administrative AgencyOversight of Notarial Practice, 31 J. MARSHALL L. REV. 857, 866 (1998)."Unfortunately, because of limited resources, the commissioning authoritiesare invariably unable to directly monitor a notary public's activities absent acomplaint being filed against the notary public." Id.263. General Omar Bradley, JOHN BARTLETr, FAMILIAR QUOTATIONS 825

(15th ed. 1980) (quoting General Bradley from an Armistice Day address in1948).264. Athanasopoulos-Arvanitakis & Dye, supra note 24, at 1003.

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statutes, such as Principles I, II, III, IV, V, VI, VII and IX of theModel Notary Act."6 5 Additionally, the ten principles proposed herehave close parallels in the Notary Public Code of ProfessionalResponsibility, with only Principle X (the misconduct reportingobligation) not having a comparable provision in the ASN Code ofEthics. '66 Only Principle VIII (the duty to become reasonably wellinformed) is purely aspirational in its nature-it has no directstatutory basis but it does have a parallel provision in the NotaryPublic Code. ' Nevertheless, a main part of this proposal is toprovoke thoughtful and constructive consideration and discussionabout the participation of notary-employers and notary-customersin the notarial process. If anything has been omitted, the hope isthat such matter will be pointed out. If one or more of thestatements of the ten principles has been constructed inartfully inany way, the hope is that others will suggest more effectivelanguage.

Furthermore, these guidelines cannot remain static but mustbe seen as genuinely fluid principles having the flexibility tomoderate and apply as technology, commercial needs, practicesand the law change. Of course, if any of the proposed principlesbecome completely outdated, they must be disregarded andwritten out of future statements of these principles. But one wayor another, there will be a continuing need to review and modifythe guidelines for notary-employers and notary-customers.

The final point is an important note. Nothing said in theseproposed principles and explanations is intended to relieve or evento diminish the notary's ultimate responsibility to perform aproper notarization, for the notary is the commissioned publicofficer who bears that legal duty. No matter what the source ofpressure to do otherwise, and no matter what the magnitude of thecoercion, the notary cannot succumb or even bend in the slightestfrom the legal and ethical course of conduct.

265. See generally MODEL NOTARY ACT (1984).266. See CODE OF ETHICS OF THE AMERICAN SOCIETY OF NOTARIES (May 4,

1980).267. NOTARY PUBLIC CODE, Guiding Principle X (1998) (stating that "[t]he

Notary shall seek instruction on notarization, and keep current on the laws,practices and requirements of the notarial office.")

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